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Posted on January 3, 2013 by Law Office of Brett A Podolsky
When the police arrest an individual, a certain process must take place. The Fourth Amendment to the U.S. Constitution guarantees certain rights to citizens. Therefore, law enforcement agencies must adhere to procedural requirements when making arrests. The best way for a person to safeguard his or her rights is to have assistance from a lawyer who is well-versed in constitutional law.
The Arrest Warrant
Arrest warrants are legal documents that the courts issue that give law enforcement officers the right to take individuals into custody. These individuals are held in custody until a trial is scheduled for them. The Fourth Amendment to the United States Constitution requires that law enforcement obtain an arrest warrant before an arrest is made in most cases. The prosecution will file for criminal charges generally in a three day time period and ask the courts to issue an arrest warrant. The arrest warrant must have the following criteria:
- Name or description of defendant cited in detail if name is not available
- The crime cited in detail
- A direct order that the named individual be brought forward
- The signature of the issuing magistrate or judge
Law enforcement will ask the court to issue an arrest warrant. They will persuade the court that there are grounds for probable cause where a crime was committed and reason to believe that a particular person committed the crime. Probable cause simply states the facts and circumstances which point to the named individual as the perpetrator of the crime. The court may issue the arrest warrant after the prosecution has filed a complaint or the prosecution has filed for a grand jury indictment.
The procedure for getting a warrant after law enforcement files a complaint is different for federal and state courts. Most courts will follow a federal court’s direction. The common rule is law enforcement files a complaint stating that a crime was committed and names the individual as the perpetrator of that crime and how that individual committed the crime. The prosecution or an agent working for the law enforcement agency will sign an affidavit stating the facts and swearing under oath that the affidavit is true to a magistrate or judge of the courts. The court will issue an arrest warrant if persuaded that probable cause exists and that the named individual committed the crime.
The prosecution must acquire a grand jury indictment in federal court if a felony was committed. This is a proceeding that involves twenty-three jurors and the prosecutor, although not necessarily the defense attorney. The grand jury will hear the evidence, and with a majority vote, issue an indictment. The defendant at this point will be legally charged with the crime. The judge will have no choice but to issue an arrest warrant.
If an attorney is needed or questions concerning arrest warrants, talk to Brett A. Podolsky at 713-227-0087 about getting a free consultation.