People subject to a California warrant can fortunately try to remove or clear the warrant to avoid criminal exposure. The three main types of warrants in the California criminal justice system include a bench warrant, arrest warrant, and search warrant. Parties should consult with an experienced criminal defense attorney for help in resolving or quieting any active warrant-related issues.
A California bench warrant is a type of warrant used to arrest and detain a person who has either failed to appear in court or failed to obey a court order. People can usually clear or “quash” a bench warrant by either:
- appearing in court, or
- possibly having their attorney appear in court on their behalf.
Arrest warrants in California authorize law enforcement officers to arrest and detain parties if they suspect those parties of committing a crime outside of an officer’s presence. Depending on the facts of the case, a skilled defense lawyer can work to:
- prevent a judge from issuing an arrest warrant, or
- if a warrant has already been issued, help the person named in the warrant from serving any county jail time or prison time.
A California search warrant authorizes police officers to search a person, a residence, a vehicle, a place of business, or any other specified area suspected of containing evidence of illegal activity. Criminal defense lawyers can attempt to clear search warrants by filing certain motions with the court (for example, a Franks motion).
Our California criminal defense attorneys will highlight the following in this article:
- 1. How can I clear a bench warrant?
- 2. What about an arrest warrant?
- 3. Can a defense lawyer help remove a search warrant?
- 4. What is the role of a criminal defense attorney?
1. How can I clear a bench warrant?
Clearing a bench warrant is also referred to as “recalling” or “quashing” it.
Successfully quashing a bench warrant means that court personnel will remove it from California’s judicial system.1
A party must appear in court in order to recall a warrant. People can have their attorney appear in court on their behalf, provided that:
- the party failed to appear for a court appearance, or
- the party failed to make a payment in connection with a misdemeanor offense.
If, though, a person failed to obey a court order that arose out of a felony case, the party must make a personal court appearance (with or without an attorney) in order to clear the warrant.
If a party does not clear a bench warrant, law enforcement officers can arrest the person and bring the party to court. Once brought to court, the judge can either:
- release the party with a warning, or
- place the person in custody.2
2. What about an arrest warrant?
Defense lawyers can usually help parties subject to an arrest warrant in one of two ways.
If a judge has not yet issued an arrest warrant, an attorney can work to gather evidence of a person’s innocence as to:
- a potential criminal case, or
- possible criminal charges.
A lawyer can use this evidence to show that there is no probable cause that a party committed a crime. Note that a judge cannot issue an arrest warrant in the absence of a prosecutor showing probable cause of a criminal offense.3
If there is already an outstanding warrant for a person’s arrest, a lawyer can try to help keep the party subject to the warrant from remaining in police custody (upon a lawful arrest). For example, an attorney can accompany a person to court and request that a judge release the party either:
- on bail, or
- on his/her own recognizance.
3. Can a defense lawyer help remove a search warrant?
Criminal defense attorneys can help clients challenge a search warrant by filing a motion to “quash and traverse” the warrant. The motion essentially questions the affidavit that served as the basis for the issuance of the search warrant.4
An example of a motion to quash is a Franks motion. Lawyers can request a Franks hearing if they believe that the affidavit which accompanied a search warrant was based on false information.5
If an attorney succeeds in proving that the affidavit contained false material information, the judge may quash or void the search warrant. Once the search warrant is quashed, any evidence that was seized under the warrant will be suppressed.6
Note that even if a lawyer cannot clear a search warrant, the attorney can try and suppress any evidence that authorities may have obtained from the warrant. Lawyers typically do this by filing a California Penal Code 1538.5 PC motion to suppress evidence.
An attorney may file this motion based upon any of the following facts:
- the California search warrant was invalid on its face,
- there was no probable cause to issue the search warrant,
- the seized property or other evidence was not specifically described in the search warrant, and/or
- the execution of the search warrant was illegal.7
4. What is the role of a criminal defense attorney?
In the State of California, defense lawyers play an invaluable role in helping clients clear and remove criminal warrants.
For example, attorneys can research to find whether a party is even subject to a warrant. If an outstanding warrant is in existence, a lawyer can identify which type of warrant it is.
Once this is accomplished, the attorney can develop the best legal strategy to challenge the warrant.
A challenge usually requires accompanying a party into court. If a lawyer does appear before a judge, the legal professional can help a client avoid any possible jail or state prison time.
More importantly, the attorney can take those steps that are necessary to quash the warrant. These steps may or may not involve the lawyer filing a particular motion with the court.
For additional help…
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact our law firm/law offices at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.
Our defense lawyers also represent clients throughout California, including those in Los Angeles, Long Beach, San Bernardino, San Diego, and Orange County.
- Note that a judge typically issues a bench warrant if a party is in “contempt of court,” meaning a person failed to appear for a court date, pay a fine, and/or obey any other court order (for example, in a domestic violence case). See California Penal Code Section 166 PC for contempt of court rules.
- See California Penal Code Sections 978.5-981 PC.
- California Penal Code 817 PC.
- Note that a judge will typically only sign or grant a search warrant if the warrant is accompanied by an affidavit that shows that there is probable cause that the person subject to the warrant was or is engaged in criminal activity. See California Penal Code 1525 PC.
- See Franks v. Delaware (1978) 438 U.S. 154 .
- See same.
- California Penal Code 1538.5 PC.