Ордер на арест и задержание: правовые аспекты и процедура

Warrant authorizing the arrest and detention of an individual

An arrest warrant is a warrant issued by a judge or magistrate on behalf of the state which authorizes the arrest and detention of an individual or the search and seizure of an individual's property.

Arrest warrants are issued by a judge or justice of the peace under the Criminal Code. Once the warrant has been issued, section 29 of the code requires that the arresting officer must give notice to the accused of the existence of the warrant, the reason for it, and produce it if requested, if it is feasible to do so.

Detaining a person is only allowed under certain conditions defined by the Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland). In article 104 (Deprivation of liberty), the fundamental law determines that
only a Haftrichter ("arrest judge") may order confinement that exceeds 48 hours. The former is called vorläufige Festnahme ("provisional confinement"), the latter is named Haftbefehl ("order of arrest"). Arrest warrants serve the enforcement of the proper expiry for instance in the Code of Criminal Procedure, but also in the civil procedure law and in the administrative law and the special administrative procedures after the Tax Code, the Finance Court order or the social court law.

The procedure for issuing arrest warrants differs in each of the three legal jurisdictions.

In Northern Ireland arrest warrants are usually issued by a magistrate.

For the police to make a lawful arrest, the arresting officer(s) must have either probable cause to arrest, or a valid arrest warrant. A valid arrest warrant must be issued by a neutral judge or magistrate, who has determined there is probable cause for an arrest, based upon sworn testimony or an affidavit in support of the petition for a warrant. The arrest warrant must specifically identify the person to be arrested. If a law enforcement affiant provides false information or shows reckless disregard for the truth when providing an affidavit or testimony in support of an arrest warrant, that may constitute grounds to invalidate the warrant. However, as long as police have the necessary probable cause, a warrant is usually not needed to arrest someone suspected of a felony in a public place; these laws vary from state to state. In a non emergency situation, an arrest of an individual in their home requires a warrant.

Probable cause can be based on either direct observation by the police officer, or on hearsay information provided by others. Information the police bring to the neutral and detached magistrate must establish that—considering the police officer's experience and training—the officer knows facts, either through personal observation or through hearsay, that would suggest to a reasonable, prudent person that the individual named in the warrant committed or was committing a crime. From 1964 to 1983, a constitutionally adequate affidavit comprised exclusively or primarily of hearsay information had to contain information suggesting to the examining magistrate that (1) the hearsay declarant supplying the information to the police was a credible person, and (2) that the hearsay declarant had a strong basis of knowledge for the alleged facts. Since 1983, a constitutionally sufficient affidavit must support a conclusion by a reviewing magistrate that the "totality of the circumstances" suggest that there is a fair probability that the facts the police relied on for probable cause to arrest are valid; the magistrate balances "the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip."

The individual issuing the arrest warrant need not be a judge or an attorney, but must be both capable of determining whether probable cause exists as well as be a neutral and detached official. While arrest warrants are typically issued by courts, they may also be issued by one of the chambers of the United States Congress or other legislatures.

The arrest warrant must, to comply with the Fourth Amendment, "particularly describe" the person to be seized. If the arrest warrant does not contain such a description, it is invalid—even if the affidavit submitted by the police or the warrant application contained this information.

A mittimus ( mittimus ) is a writ issued by a court or magistrate, directing the sheriff or other executive officer to convey the person named in the writ to a prison or jail, and directing the jailor to receive and imprison the person. Police jargon sometimes refers to such a writs as a "writ of capias", defined as orders to "take" (or "capture") a person or assets. Capias writs are often issued when a suspect fails to appear for a scheduled adjudication, hearing, or similar proceeding.

A bench warrant is a summons issued from "the bench" (a judge or court) directing the police to arrest someone who must be brought before a specific judge either for contempt of court or for failing to appear in court as required. Unlike a basic arrest warrant, a bench warrant is not issued to initiate a criminal action. For example, if a defendant is released on bail or under recognizance and misses a scheduled court appearance, or if a witness whose testimony is required in court does not appear as required by a subpoena, a bench warrant may be issued for that person's arrest. In cases where a bench warrant is issued to arrest someone who posted bail and subsequently missed their court date, once they are rearrested and brought before the judge, the judge may raise the bail amount or revoke it completely.

An arrest warrant is an "outstanding arrest warrant" when the person named in the warrant has not yet been arrested. A warrant may be outstanding if the person named in the warrant is intentionally evading law enforcement, unaware that there is a warrant out for their arrest, the agency responsible for executing the warrant has a backlog of warrants to serve, or a combination of these factors. Some jurisdictions have a very high number of outstanding warrants. The vast majority in American jurisdictions are for traffic related (non violent) citations. The state of California in 1999 had around 2.5 million outstanding warrants, with nearly 1 million of them in the Los Angeles area. The city of Baltimore, Maryland had 100,000 as of 2007. New Orleans, Louisiana had 49,000 in 1996. The state of Texas in 2009 had at least 1.7 million outstanding warrants in the Houston area alone. Some jurisdictions have laws placing various restrictions on persons with outstanding warrants, such as prohibiting renewal of one's driver's license or obtaining a passport.