Many criminal cases begin with arrest warrants. They're papers issued by the courts that authorize the police to take suspected criminals into custody and hold them until they can be brought to trial. Obviously, being arrested is serious business. It can change your life forever. So, there are strict rules on how and when a warrant will be issued.
One of the hallmarks of the US criminal justice system is the protection we have against being arrested at the whim of the police, that is, being arrested for any reason or no reason at all. The Fourth Amendment to the US Constitution, as well as the constitutions of most states, require law enforcement agents to get a warrant before making an arrest. There are some exceptions to the rule, though.
Warrant Requirement
As a general rule, the local police or federal agents need a warrant before they arrest you, and they have to ask for one from a court. A court may issue a warrant after it's been given a criminal complaint or an indictment. However, regardless of which is used, the agents have to convince the court that there's probable cause that a crime was committed and that you committed it. "Probable cause" means that given all the facts and circumstances, a reasonable person would believe that you committed the crime.
Complaint
Some criminal actions begin when the prosecution files a criminal complaint against a suspect. The process for getting a warrant when a complaint is filed may be different depending on whether the case is in federal or state court. However, many states follow the federal rule. Generally, a criminal complaint is a written statement explaining the crime you're suspected of committing and how you committed it. To get a warrant, the police or prosecutor must take the complaint to a magistrate or judge and swear under oath that it's truthful and accurate.
If the magistrate agrees with the complaint and finds that there's probable cause that you committed the crime charged, the magistrate will issue a warrant for your arrest.
Indictment
In federal courts, and in some state courts, if you're charged with a felony crime, the prosecution has to get a grand jury indictment before it can take you trial. Again, this process is different for federal and state courts, but those states that use indictments generally follow the federal rule. A grand jury's job is to determine if there's probable cause that you committed a certain crime. The prosecutor shows the grand jury the evidence he has against you, and if they believe there's probable cause, they'll "indict" you. This means you'll be charged formally with committing a crime.
Once an indictment is returned, the prosecution may ask a judge or magistrate to issue a warrant for your arrest, and she must grant the request.
Warrant and "Execution"
To protect you from being wrongfully arrested, the Fourth Amendment requires that an arrest warrant be specific. It must contain several items of information, such as:
- Your name. If your name isn't known at the time the warrant is requested, the warrant must include a description of you that will allow the police to identify you with reasonable certainty and with as little risk as possible of arresting some other person
- A description of the crime that you're suspected of committing
- A command that, as soon as possible, you be arrested and brought before a magistrate or judge, and,
- The signature of the magistrate or judge who issued the warrant