The criminal justice system relies on the ability of the state to take criminal defendants and suspects into custody and detain them. The use of arrest warrants is part and parcel to this process. Arrest warrants are used by every state and by the federal government. The issuance and use of such warrants must comply with strict laws and constitutional protections.
Under the Fourth Amendment of the United States Constitution, the people are guaranteed the right to be free from unreasonable searches and seizures. It further states that no warrant can be issued unless it is based on probable cause, supported by a statement provided under oath and describing the person to be seized. All search warrants issued must comply with these basic constitutional provisions, as well as any other requirement made by state or federal law.
Only judges or magistrates can issue arrest warrants. When agents of the government want an arrest warrant issued, they must provide a judge with an evidentiary basis to show probable cause exists to believe a person has committed a crime, or is about to commit a crime. This is usually done by means of a sworn affidavit provided by a law enforcement officer, or through direct testimony before the judge that is then transcribed into a written statement and sworn to by the state agent.
Arrest warrants must state the particulars of the crime for which the person is being arrested. Each state, as well as the federal government, have statutes governing what these warrants must include. For example, the Federal Rules of Criminal Procedure dictate that federal arrest warrants include information such as the defendants name, if known, or a description of the defendant such that he or she can be identified with reasonable certainty. Warrants must also describe the charges the defendant is accused of, command law enforcement to bring the defendant before the magistrate and be signed by the judge issuing the warrant.
Arrest warrants can be issued at any time as long as the state can meet the statutory requirements. If the state has evidence to believe a crime is going to be committed, it can seek an arrest warrant and arrest any defendants before the crime is carried out. Similarly, arrest warrants can also be issued after the commission of a crime. Typically, these warrants are issued once law enforcement agents have conducted a criminal investigation and found evidence about the crime.
Arrest warrants command law enforcement to take any named defendants into custody. In executing an arrest warrant, law enforcement agents can use whatever necessary force to effect the person's arrest, though specific laws can dictate some tactics used. For example, states generally require law enforcement agents to announce their presence before entering a person's residence. However, states like North Dakota have statutes (South Dakota Code § 23A-35-9) that allow "no-knock" warrants if there is reason to believe announcing the officer's presence before executing the warrant could result in injury or harm.
Roger Thorne is an attorney who began freelance writing in 2003. He has written for publications ranging from "MotorHome" magazine to "Cruising World." Thorne specializes in writing for law firms, Web sites, and professionals. He has a Juris Doctor from the University of Kansas.