What is a Motion to Quash a Warrant?

Posted by Neil Shouse | Sep 15, 2019 | 0 Comments

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A motion to quash a warrant is a request for a court to find a warrant, or part of a warrant, invalid. Quash means to nullify, void or declare invalid. The two most common types of warrants are search warrants and arrest warrants.

If a search warrant is quashed evidence can be suppressed or thrown out (See Penal Code 1538.5). Arrest warrants and bench warrants can be quashed, executed, cleared, or recalled. (See Penal Code 828 & 982).

What is a Motion to Quash and Suppress a Search Warrant?

A motion to quash a search warrant and suppress evidence is a claim that evidence was seized in violation of the Fourth Amendment (See Penal Code 1538.5) Motions to quash a search warrant are usually made AFTER a search and seizure has been completed.

Search warrants are court orders that allow law enforcement to search:

  • a person,
  • a residence,
  • a vehicle,
  • a place of business, OR
  • any other specified place suspected of containing evidence of illegal activity.

The Fourth Amendment of the United States Constitution guarantees:

  • The right of the people to be secure in their persons and houses against unreasonable searches and seizures, and no Warrants shall issue, but upon probable cause, particularly describing the place to be searched, and the persons or things to be seized.

To obtain a search warrant, law enforcement must submit an application to a magistrate (judge). The application includes an affidavit under penalty of perjury that:

  • names or describes the person to be searched or searched for,
  • particularly describes the property, thing, or things to be searched for, and
  • specifically describes the place to be searched.

When law enforcement executes the warrant, the warrant authorizes the seizure of the described evidence. A motion to quash a search warrant and suppress evidence under Penal Code 1538.5 claims that the warrant is:

  • insufficient on its face,
  • lacks probable cause, OR
  • resulted in the seizure of evidence not described in the warrant.

A motion to quash and traverse a search warrant claims that the supporting affidavit contained fatal mistakes or omissions. [See Penal Code 1538.5(a)(1)]. This is also known as a Franks Motion. See

Can a Search Warrant Be Quashed Before a Search Occurs?

Yes, it is possible to make a motion to quash BEFORE a search warrant is executed. Here is a real-life EXAMPLE:

  • A woman received an email from Facebook saying they had been served with a search warrant to search her account. Facebook informed her they would give the sheriff the requested information in six days unless she filed a motion to quash with the court. After the ACLU filed a Motion to Quash Search Warrant on her behalf, the prosecutor withdrew the search warrant.

What is a Motion to Quash an Arrest Warrant?

A motion to quash an arrest warrant is a claim that an arrest warrant is invalid or illegal. If a person believes that there is an invalid arrest warrant outstanding, a motion to quash arrest warrant can be filed.

An arrest warrant is issued when a magistrate is satisfied that there are reasonable grounds to believe that a person has committed a crime. (See Penal Code sections 813 and 827.1). A warrant for arrest is a legal process which orders that:

  • the person named in the warrant be arrested, and
  • brought before a magistrate.

To be valid, an arrest warrant must specify the:

  • name of the defendant (or fictitious name and adequate description),
  • time of issuance,
  • city or county of issuance,
  • signature and title of the magistrate, judge, justice, or other issuing authority, and
  • name of the court or other issuing agency.

Please note that an arrest warrant is slightly different than a bench warrant, even though both will subject a person to arrest. 

What is a Bench Warrant? How Do You Quash or Recall a Bench Warrant?

A bench warrant is an arrest warrant issued by a judge in court for a failure to appear. Under Penal Code 978.5, a bench warrant of arrest may be issued when a defendant fails to appear after being:

  • ordered to personally appear in court at a specific time and place,
  • released from custody on bail and ordered to appear at a specific time and place,
  • released from custody on their own recognizance and promise to appear,
  • released upon citation and signed a promise to appear in court,
  • authorized to appear by counsel and the court ordered that the defendant personally appear.

To quash a bench warrant, a case needs to be put on the calendar in the courtroom where it was issued. Then an oral motion to quash or recall can be made to the judge. The judge will quash or recall the warrant because the person has now complied with the order to appear.

Please note that the person who failed to appear may face certain penalties. These could include bail, jail time, or added charges. See our article on “How to Clear a Bench Warrant.” 

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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