If police convince them that there is probable cause to apprehend the suspect, police will get the warrant. Then police can execute it by taking the suspect into custody according to the terms of the warrant.
Arrest warrants should not be confused with other types of warrants:
- Search warrants authorize police to search for evidence, but not apprehend people, and
- Bench warrants instruct the police to apprehend someone for violating a court order rather than a crime. Bench warrants are instigated by the court, while arrest warrants begin with the police.
In this article, Colorado criminal defense lawyers discuss 5 key things to know about arrest warrants:
- 1. What is an arrest warrant in Colorado?
- 2. How do police get one?
- 3. How do police execute an arrest warrant in Colorado?
- 4. When can police arrest someone without a warrant?
- 5. Can arrest warrants be challenged?
1. What is an arrest warrant in Colorado?
It is a document that allows law enforcement agencies to take a suspect into custody. The warrant will likely include the following details:
- Who is supposed to be arrested,
- The criminal offense that person is accused of committing,
- When and where the warrant was issued,
- The judge who approved it, including their signature,
- Limits on how the apprehension can be made that often specify where and when the warrant can be executed, and
- Details on the amount of bail that will have to be posted.
Ideally, arrest warrants are supposed to identify the person to be arrested by their name. However, when the name is not known, the warrant has to make a clear description of the suspect. This description has to be clear enough for police to be reasonably certain they are arresting the right person.
When police have an arrest warrant, they can execute it by taking the suspect into custody under its terms.
2. How do police get one?
The police department or sheriff’s office needs to show a neutral and detached magistrate that there is probable cause for taking the suspect into custody. The affidavit has to be:
- In writing, and
- Sworn to, under oath, by the requesting officers.
These requirements come from federal law: The Fourth Amendment of the U.S. Constitution1 and Article II, Section 7 of the Colorado Constitution.2
2.1. What is a neutral and detached magistrate?
Police have to show probable cause to a neutral and detached magistrate.3
In Colorado, this has to be someone in the judiciary, rather than a law enforcement officer.4 It does not necessarily have to be a judge, though. Other court workers can issue an arrest warrant, including:
- Supervised court clerks who are able to make probable cause judgments.5
Even judges, though, can lose their detachment from a case if they are involved in the investigation or have an interest in it.6
2.2. What is probable cause?
Law enforcement officers have to show there is probable cause that a crime has happened.
The exact definition of probable cause is notoriously vague. What is clear, though, is that police have to show a crime likely happened. It is not proof that the crime occurred, though. It only means that there is a reasonable basis to believe that a crime happened.
Example: Police ask a district court judge for permission to arrest someone who might have committed a carjacking of a motor vehicle. The judge denies the request because that is not probable cause.
Police have to support their claim with concrete evidence that is particular to the current case. That evidence has to be enough for the judge to make a probable cause judgment. It cannot be a general accusation that someone committed a crime. The evidence can include:
- Testimony given by a witness to a crime,
- Anonymous tips from members of the public,
- Results of a long investigation, and
- Statements given by law enforcement about their interactions with a suspect.
Example: A sheriff’s affidavit to a county court says only, “I solemnly swear that Jack committed a DUI.” The affidavit is insufficient for an arrest warrant in criminal cases under Colorado law.7
2.3. What are felony indictments?
In some cases, prosecutors choose to go through a grand jury to obtain an arrest warrant. This does not happen very often, though, and can only happen in felony cases.
Should they choose this path, law enforcement will have to show probable cause to the grand jury rather than a judge or magistrate. The grand jury consists of either 12 or 23 people. A prosecutor will present evidence that a crime has been committed. If the grand jury agrees that there is probable cause, they will return an indictment. The prosecutor then brings the indictment to a judge, who can issue the arrest warrant.
3. How do police execute an arrest warrant in Colorado?
Police execute it by finding the person listed on the warrant and physically arresting them.
The person being arrested is brought to the police station, where they are held until the court date for the arraignment. There are only a few days between the arrest and the arraignment.
At the arraignment, the person who was arrested will be told what criminal charges they are facing.
Many arrest warrants have specific instructions about where and when the arrest can be executed. These instructions are often made to keep others safe during the arrest. Police carry out those instructions based on the type of crime and the suspect’s criminal history.
Law enforcement officers often stumble on someone who has a warrant out for their arrest. Any time a police officer asks for someone’s identification, they run the information through their database. If there is a “hit,” police execute the warrant and make an arrest.
3.1. How long do arrest warrants stay active?
Law enforcement can execute an arrest warrant at any time after it has been issued. They do not expire and go on the person’s criminal records, so it can be months or even years before the suspect is caught.
This often means suspects get arrested on allegations that are several years old. They may have even forgotten about the crime they are being accused of committing.
3.2. Can a Colorado arrest warrant be executed in another state?
An arrest warrant that was issued in Colorado can be executed in another state. And vice versa.
The database of outstanding arrest warrants is a national one. Law enforcement in every state share their information on this database so police in other states can see it. As a result, people can be arrested in one state for a crime that allegedly happened in another state. If this happens, they can be extradited to the state where the crime allegedly occurred.
4. When can police arrest someone without a warrant?
Despite the fact that police are supposed to get a warrant prior to arresting, police often apprehend suspects without one. This is because there are so many exceptions to the arrest warrant requirement. These exceptions allow warrantless apprehensions in lots of circumstances, including:
- A misdemeanor was committed in the presence of a police officer,8
- A police officer has probable cause to believe the suspect committed a felony, and the apprehension would happen in a public place,9
- A police officer has probable cause to believe a crime – no matter how minor – is occurring or has occurred,10 and
- There are exigent circumstances, an emergency, or evidence would be destroyed, even if the apprehension happens inside a suspect’s house.11
5. Can arrest warrants be challenged?
The evidence obtained after executing invalid arrest warrants can be excluded from trial. Proving invalidity requires showing that:
- The magistrate was not neutral or was not detached from the investigation,
- The affidavit did not prove there was probable cause for being arrested,
- Facts in the affidavit were made up or were lies, or
- The affidavit does not provide specific and concrete facts.
An invalid arrest warrant violates your rights when it is executed. This taints the evidence that it obtains. Any tainted evidence can be kept out of your trial with a motion to suppress. Without the evidence, law enforcement may not be able to prove you committed a Colorado crime.
- “…no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
- “…no warrant to search any place or seize any person or things shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.”
- Giordenello v. U.S., 357 U.S. 480 (1958), People v. Brethauer, 482 P.2d 369 (1971).
- People v. Moreno, 176 Colo. 488 (1971).
- Shadwick v. City of Tampa, 407 U.S. 345 (1972).
- People v. Trujillo, 712 P.2d 1079 (Colo. App. 1985); Shadwick v. City of Tampa, 407 U.S. 345 (1972); and Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979).
- Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560 (1971).
- People v. Triantos, 55 P.3d 131 (2002).
- U.S. v. Watson, 423 U.S. 411 (1976) and People v. Hoinville, 553 P.2d 777 (1976).
- Devenpeck v. Alford, 543 U.S. 146 (2004); Atwater v. City of Lago Vista, 532 U.S. 318 (2001); and U.S. v. Robinson, 414 U.S. 218 (1973).
- McCall v. People, 623 P.2d 397 (1981); People v. Moreno, 176 Colo. 488 (1971); and Payton v. New York, 445 U.S. 573 (1980).