Arrests, Warrants, Summons & Subpoenas Flashcards
What are the elements of an arrest?
An arrest has two elements:
- Taking the suspect into custody; and
- Actual restraint or submission to custody.
(Pen. Code, §§ 834, 835.)
What is an arrest warrant?
Arrest warrants are usually printed forms filled in by a judge or magistrate directing any peace officer to arrest a particular person and bring him or her before the issuing judge or magistrate or, if the judge or magistrate is unavailable, before the nearest or most accessible magistrate.
(Pen. Code, § §814, 1427.)
What is a summons?
A summons is a document used instead of an arrest warrant. A magistrate may issue a summons at the prosecutor’s request when a complaint charging a felony is filed.
(Pen. Code, § 813.)
A summons gives the defendant the opportunity to appear in court for arraignment without being arrested.
What is a search warrant?
Search warrants are judicial orders authorizing peace officers to search specified places and things and to seize specified evidence.
(US Const. amend IV; Cal Const. Art I, §13; Pen. Code, § §1523–1542.)
What is a bench warrant?
Bench warrants are warrants issued by a judge to bring a nonappearing defendant or witness before the court.
(Pen. Code, § §978.5–981 (defendants); Code of Civ. Proc., § 1993 (witnesses).)
These are sometimes called body attachments.
Can a bench warrant issue if the witness was subpoenaed by mail service?
No. Bench warrants for nonappearing subpoenaed witnesses may issue only if the subpoena was personally served; service by mail under Pen. Code, § 1328d is insufficient.
(Pen. Code, § 1328d(a); see Code Of Civ. Proc., §§1993 (bench warrant may issue on proof of service of subpoena), 1987(a) (personal service required).)
What is a subpoena?
Subpoenas are orders compelling the attendance of a witness in a case.
(Cal Const. Art. I, § 15; Pen. Code, § 1326(a); Govt Code, § 204.)
What is a subpoena duces tecum?
A subpoena duces tecum is an order requiring the subpoenaed person to bring with her specified evidence.
(See Pen. Code, § §1326(b)–(d).)
What are the special rules for subpoenaing a peace officer?
Special time limits apply for subpoenaing police officers if they are not personally served. If their superior officer is to be served, it should be done more than 5 working days before the hearing—otherwise, there is a risk that the police officer will not have to attend.
(Pen. Code, § 1328(e).)
What is the deadline for bringing an arrestee before a magistrate when they are arrested with a warrant?
Without unnecessary delay, but no longer than 48 hours after arrest, excluding holidays and Sundays, unless the 48 hours expire when magistrate’s court is not in session.
(Pen. Code, § 825.)
When a complaint or indictment is filed, defendant appears before issuing judge or magistrate.
What is the deadline for bringing an arrestee before a magistrate when they are arrested without a warrant?
Probable cause determination must be made within 48 hours after arrest, including Sundays and holidays.
(County of Riverside v McLaughlin (1991) 500 US 44, 56, 111 S Ct 1661.)
What is the definition of probable cause?
A state of facts that would lead a person of ordinary caution and prudence to believe and conscientiously entertain an honest and strong suspicion that the person to be arrested is guilty of a crime.
(People v. Ingle (1960) 53 Cal.2d 407, 412.)
May a prosecutor send a summons directly to a defendant?
No. Summons are issued by a magistrate at the request of a prosecutor. (See Pen. Code, § 813.)
When the defendant appears, the magistrate must order them to be booked if they have not been yet. (Id.)
Can a subpoena be served by email?
Yes. Email service of a subpoena is allowed under Penal Code section 1328d(a). Service is effected when the recipient acknowledges receipt of the subpoena and identifies themselves by reference to heir date of birth and driver’s license number. (Id.)
However, a bench warrant may not be available.
Imagine the prosecution served a witness by mail. The witness then called the prosecution, and acknowledged receipt of the subpoena. She provided her date of birth and California driver’s license number. Was service properly accomplished?
Yes.
(People v. Perez (1989) 207 Cal.App.3d 431, 435-6.)
