Understanding the Basics of Arrest Warrants and Search Warrants
What is an arrest warrant? Do police have to have a warrant to detain you? Is an arrest warrant different from a search warrant?
If so, how? These are some pretty common questions – especially if you’ve recently had a run-in with law enforcement.
Our experienced Los Angeles criminal defense attorneys are here to help. The more you know about warrants, the better prepared you can be to protect yourself and your rights. Here’s what you need to know.
What is a Warrant?
In very simple terms, a warrant is a document that gives law enforcement the right to do something that would typically be a violation of one of your Constitutional rights. It’s an order – issued by a judge or magistrate – that gives the police permission to conduct a search, seize property, or place you under arrest.
Arrest Warrants: The Basics
If the police believe that you’ve broken the law, they can seek a warrant for your arrest. In order to get a warrant, the police must be able to articulate probable cause that you’ve committed a crime.
What is Probable Cause?
Probable cause is a legal standard of proof that means, based on evidence or the specific circumstances of a case, it’s reasonable to believe that you have committed a crime. There’s no hard-and-fast formula or threshold for establishing probable cause. What constitutes probable cause can vary from one case to the next.
Things that might be used to support a finding of probable cause include:
- Physical evidence of a crime
- The officer’s own personal observations
- Statements from individuals who witnessed the crime
- Evidence to suggest that you were in the area at the time of the crime, and
- Evidence to suggest that you might have a motive to commit the crime.
One of these things might not be enough to establish probable cause. Considered together, however, more than one of these things could be enough to establish probable cause. That’s because, generally speaking, if, based on the totality of the circumstances, it’s reasonable to suspect that you’ve broken the law, probable cause exists.
Who Can Issue an Arrest Warrant?
In California, judges are responsible for issuing arrest warrants. There are a few different ways this can happen:
- In response to an application from law enforcement, supported by sworn affidavits;
- Following a grand jury indictment; or
- From the bench, when a defendant is found to be in contempt or violation of a court order.
In any of these situations, probable cause must be articulated and present.
Do the Police Have to Have a Warrant to Make an Arrest?
No. An arrest warrant is not required to make an arrest. The police can make a lawful arrest if they personally witness a crime or if there are exigent circumstances (if, for example, they believed you were an immediate threat to others or likely to leave the state). In fact, the police can make an arrest if they, at the time, believe they have probable cause to do so.
However, as a general rule of thumb, arrest warrants are preferred. That’s because it’s much easier for defense lawyers to challenge and invalidate a warrantless arrest. With a warrant in hand, the police have provided proof of probable cause and gotten the court’s support ahead of time.
When is an Arrest Warrant Valid?
An arrest warrant can only be valid if it:
- Is based on police affidavits made without reckless disregard for the truth;
- Contains the grounds for finding that probable cause exists; and
- Is issued by a neutral and detached judge, magistrate, or grand jury.
Additionally, an arrest warrant must “particularly describe” the named suspect. So, the warrant has to contain a specific description with enough information to describe what the suspect looks like. This is to ensure that law enforcement officers are able to identify and arrest the right person.
When Can an Arrest Warrant Be Executed?
It depends on whether the underlying offense is a misdemeanor or a felony.
In most cases, misdemeanor arrest warrants have to be executed between the hours of 6 AM and 10 PM. However, there are no time restrictions if the suspect is in custody, if the arrest is made in public, or if the judge waives the requirement.
California has no restrictions regarding when a felony arrest warrant can be served.
What Can the Police Do With an Arrest Warrant?
If a judge has issued a warrant for your arrest, the police have the right to detain you and take you into custody. While making the arrest, the officers will also have the right to perform a search – but one that’s very limited in scope. Specifically, the officers can search you and any personal belongings in your possession, as well as anything that’s in plain view.
Plain view means that something can be seen without any manipulation. So, for instance, if the police showed up at your door to arrest you and could clearly see a firearm on the table next to your door, they could examine and seize the weapon.
However, they would not be able to open a drawer in the table to look for the weapon. The arrest warrant does not give the police the power to do that. They might ask you for permission to conduct a more invasive search, but you have the absolute right to deny that request. In most situations, police have to obtain a search warrant or consent to conduct a search.
Search Warrants: The Basics
You have a Fourth Amendment protection against unreasonable searches and seizures. This means that the police can’t just enter your home and start rifling through your cabinets to find evidence of a crime. The police can only perform a search if:
- You give consent
- There are exigent circumstances, or
- A judge issues a search warrant.
Police officers and law enforcement officials are encouraged to obtain a search warrant whenever possible.
Again, this is because a warrantless search is much more likely to be subject to scrutiny and challenged in court. That’s because judges will only issue search warrants when police officers can provide compelling evidence that suggests a crime has been committed AND that evidence of that crime is likely to be found in a particular location.
Search Warrants Must Be Issued With Reasonable Particularity
A search warrant is not a free pass for police officers to conduct a search wherever they want. In California, search warrants must be issued with reasonable particularity. In other words, the warrant will only provide officers will the ability to conduct a very narrow search. Officers will be limited to searching the specific locations detailed in the warrant. Additionally, officers must only search for the evidence that’s specified in a warrant.
The terms of a search warrant must be clear. Descriptions of locations and evidence must be specific and detailed. This way, officers do not have the ability to expand the scope or search beyond what a judge has determined is reasonable.
When Can the Police Execute a Search Warrant in Los Angeles?
After convincing a judge that there’s probable cause for a search warrant, the police will have 10 days to serve and execute it. Pursuant to the California Penal Code, most search warrants must be executed between the hours of 7 AM and 10 PM. There is one exception. A search warrant can be executed at any time if the police officers reasonably believe that evidence might be destroyed or a suspect might flee. Simply put, police officers can bend the rules a little bit when exigent circumstances exist.
What is Knock and Announce?
Unless the police believe that evidence is going to be destroyed or that serving a warrant might create a dangerous situation, officers must “knock and announce” a warrant. This means that officers have to give you the time and opportunity to let them enter your premises peacefully and without force. If you choose to decline peaceful entry, the officers can break down the doors or windows to gain entry.
How Do I Know a Search Warrant is Valid?
The police only have the right to enter your premises and conduct a search if they have your permission or a valid warrant. You have the right to see the warrant for yourself before allowing the police to enter. The best course of action is to ask the officers to slip the document under the door so that you can review it for yourself to ensure that it’s a lawful court order that permits the search. Or, step outside and review it before allowing the officers to enter.
In order to be valid, a warrant must contain:
- Your name and address
- The date the warrant was issued
- The name of the judge who issued the order
- The specific agency that’s been authorized to conduct the search
- A description of the place or places to be searched, and
- A description of the items that are being searched for.
If anything is missing or if something seems off, it’s important to call an experienced criminal defense lawyer immediately and decline to let the officers into your home to conduct the search. If a search is conducted anyway, despite your refusal to comply, the results of that search must be challenged. The state cannot be allowed to benefit from a violation of your rights.
Your attorney can file a motion to suppress evidence if:
- The warrant wasn’t executed properly
- The warrant was not based on probable cause
- The warrant did not particularly describe the location or evidence sought, or
- The warrant was insufficient on its face.
If the motion is approved, the state will be unable to use the tainted evidence in its case against you. This can result in a plea, or better yet, dropped charges.
It’s important to note that just bearing the word “warrant” does not mean that you are reading a search warrant. Some law enforcement agencies will try to trick you into permitting a search by serving a warrant of deportation/removal. This is an administrative warrant – not a legal one. It does not carry the same weight nor allow the state to infringe on your rights.
Schedule a Call With Our Los Angeles Criminal Defense Lawyers
Just because the police have a warrant doesn’t mean that an arrest or search is lawful. If you’ve recently had a run-in with the law in Los Angeles, it’s important to discuss your rights and options with an experienced defense attorney. Contact the Rodriguez Law Group for immediate legal assistance. Your first consultation is free, so call now.