A warrant is a written order that is signed by a judge. The warrant authorizes the police to conduct searches, seizures, and arrests. A judge may only issue a search warrant when there is probable cause that the police will find evidence of a crime during a search. A judge may only issue an arrest warrant when there is reason to believe the person listed in the warrant is engaging in, or has engaged in, criminal activity.
What is the Purpose of an Arrest Warrant?
An arrest warrant is an order permitting the arrest of an individual who is named in the warrant. To obtain the warrant, the police must reasonably believe this person is engaged in, is planning to engage in, or has engaged in criminal activity. The person may be a specific individual (e.g., “John Doe.”). In cases where the police do not know the identity of the individual, the warrant must describe what the individual looks like (e.g., “about 6’2”, gray hair, wears glasses”).
Once the police have the warrant, they may locate and seize the person. An arrest is considered a seizure of a person. Once the arrest is made, the police may conduct a search of the person. This search is called a search “incident to a lawful arrest,” also known as an “arrest search.”
What is the Purpose of a Search Warrant?
A search warrant allows the police to search for evidence of criminal activity. The search warrant must identify and describe that evidence, and where it may reasonably be found. Evidence of criminal activity may be found (among other areas) in a home, a storage locker, or an automobile.
Search warrants also permit the police to search for individuals in order to arrest them. The search warrant permits the police to search the area, whether it is the home, automobile, or storage locker, for where the item may be found. The scope of the search is limited to what evidence and locations are named in the warrant
What Do Arrest and Search Warrants Have in Common?
Arrest warrants and search warrants must both be supported by probable cause. Probable cause is a reasonable (plausible) belief that an individual whose arrest is sought, has committed or will commit a crime. Probable cause is a reasonable belief that there is evidence of criminal activity, and that this evidence may be found in a particular location. Both arrest and search warrants must be signed by a neutral individual, either a judge or magistrate. Both arrest and search warrants must be “executed” (performed) reasonably.
For example, an arrest warrant may authorize the arrest of a person named John Doe, who resides in a particular apartment. The arrest warrant is executed unreasonably when the police attempt to arrest every individual named John Doe within a five-mile radius of that apartment. Only the John Doe who is reasonably believed to have committed a crime can be arrested. A search warrant may allow the police to search a person’s backyard for a specific item of evidence.
If the police search the entire home and the area outside, the search warrant has been executed unreasonably. The Fourth Amendment requires that evidence obtained through an illegal search warrant be excluded from a criminal trial. Likewise, the Fourth Amendment requires that a person who is arrested through an illegal search warrant, be released.
What Are the Differences Between Search Warrants and Arrest Warrants?
Key differences between arrest warrants and search warrants include:
- Generally, a search warrant must be issued before the filing of charges or the arrest of an individual. In contrast, an arrest warrant may be issued much later in the “timeline” of a criminal case. In a typical criminal case, the trial begins after an indictment (a formal charge against an individual, brought by a special jury known as a “grand” jury). Search warrants are issued before there is even an official “case,” let alone the involvement of a grand jury by way of indictment.
- Arrest warrants, however, may be issued after the indictment. Search warrants must be supported by probable cause at the time of the search. In contrast, a grand jury finds probable cause to arrest an individual, and then arrests the person, perhaps days after the alleged crime has been committed.
- Search warrants typically contain an expiration date. A search warrant is generally valid for several days to several weeks Arrest warrants have a much longer duration. If, for example, a warrant is issued for a person’s arrest, and the person is not arrested because they are hiding, or have fled to another country, a judge may issue a bench warrant.
- Bench warrants allow the police to arrest someone on sight. Generally, there is no legal requirement that a bench warrant contain an expiration date. A bench warrant, therefore, allows for the arrest of an individual many years after commission of an alleged crime.
Do I Need the Help of a Lawyer with Warrant Issues?
If you believe that a search or arrest warrant has been improperly issued or used, you should contact a criminal defense attorney. An experienced criminal defense attorney near you can evaluate the facts of your situation. The attorney can assist you in preparing a defense. The attorney can also represent you at hearings and court proceedings.