3.4 Arrest with Warrant or Summons

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

3.4 ARREST WITH WARRANT OR SUMMONS

3.401 Authority to Issue Warrant or Summons. Process for the arrest of a person charged with a criminal offense may be issued by the judge or clerk of any circuit court, any general district or juvenile and domestic relations district court, or any magistrate. ³² However, a magistrate may not

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issue an arrest warrant for a felony offense based on a complaint by anyone other than a law enforcement officer without prior authorization by the commonwealth's attorney, if available, or by a law enforcement agency having jurisdiction over the offense. ³³

A law enforcement officer may not seek a warrant for a person's arrest for capital murder without prior authorization of the commonwealth's attorney. However, the failure to abide by this restriction will not invalidate a conviction or provide the basis for delaying the execution of the sentence. ³⁴

3.402 Complaint. The complaint consists of sworn statements by a person or persons of facts relating to the commission of a criminal offense. Rule 3A:3 of the Rules of the Virginia Supreme Court provides that the issuing authority may require that sworn statements be reduced to writing and signed. Section 19.2-72 of the Virginia Code provides that if the complainant is not a law enforcement officer, the complaint must be in writing whenever practicable. However, if no warrant is issued based upon such written complaint, the complaint must be returned to the complainant.

When complaint of a criminal offense has been made to a judicial officer, he or she must examine the complainant and any other witnesses under oath. If the judicial officer finds probable cause to believe that the accused has committed an offense, he or she may issue a warrant for the arrest. ³⁵

3.403 Form and Content of Arrest Warrant. A warrant for arrest must: (i) be directed to an appropriate officer or officers; (ii) name the accused or, if his or her name is unknown, set forth a description by which he or she can be identified with reasonable certainty; (iii) describe the offense charged with reasonable certainty; (iv) command that the accused be arrested and brought before a court of appropriate jurisdiction in the city, county, or town in which the offense was allegedly committed; and (v) be signed by the issuing officer. ³⁶

A warrant, like an indictment, must give the accused clear notice of the nature and character of the offense, ³⁷ but particularity as to the charged

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offense is not as strict a requirement for a warrant of arrest as it is for a formal indictment. Nevertheless, the warrant must sufficiently identify the offense for which the defendant is to stand trial. ³⁸ Both the offense and the accused must be described with enough specificity to meet the Fourth Amendment's "particularity" requirements. If an offense is adequately described in the arrest warrant, citing the statutory reference incorrectly does not invalidate a conviction. ³⁹ The Attorney General, however, has opined that an arrest warrant that fails to state the criminal charge is not to be served. ⁴⁰

3.404 Summons Instead of Warrant in Certain Cases. In any misdemeanor case, in any class of misdemeanor cases, or in any case involving complaints made by state or local government officials having responsibility for the enforcement of any statute, ordinance, or administrative regulation, the magistrate or other issuing authority may issue a summons instead of...