A. Issuance of Complaint and Warrant for Arrest


In some instances, federal law enforcement agents initially may not know who committed a certain crime.  For example, oftentimes masked gunmen rob banks. In cases like this, even though the subject’s identity is not known, his whereabouts are discovered. Using our hypothetical bank robbers, a teller may obtain a license number off of a speeding get-away car and the police may quickly locate that car and a subject driving it who fits the general description of the robber. In this type of case, a federal criminal suspect may be arrested by a law enforcement officer with no formal arrest warrant in hand. That is to say, if exigent circumstances demand it and there is no time to procure an arrest warrant, a federal criminal suspect may be arrested by a law enforcement officer simply on the basis that there is probable cause to believe that the suspect committed the crime in question. Fortunately for us all, the officer’s decision is not sacrosanct. For if a federal magistrate or judge finds that the suspect was arrested on less than probable cause, they will order the suspect to be immediately released from custody. But the first step in the process as described herein is the arrest itself.

If an arrest is made on the basis of an officer’s subjective determination of probable cause, that officer or a fellow agent must immediately prepare a complaint and present it to the Court after the suspect has been taken into custody. This requirement is set forth in Rule 5(b) of the Federal Rules of Criminal Procedure: “If a defendant is arrested without a warrant, a complaint meeting Rule 4(a)‘s requirement of probable cause must be promptly filed in the district where the offense was allegedly committed.”

Before we proceed to Rule 4(a), first we must address the definition of a complaint. As specified in Rule 3 of the Federal Rules of Criminal Procedure: “The complaint is a written statement of the essential facts constituting the offense charged. Except as provided in Rule 4.1, it must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer.”  Merely from an examination of the complaint, one can deduce who and what is being charged, when and where the alleged offense took place and who may have been a witness to the offense. Additionally, and most importantly, one finds therein a succinct recitation of the government’s position as to what the probable cause was that supported the arrest.

If a person is arrested by an officer with no warrant due to exigent circumstances and based solely on the officer’s determination that there is probable cause to believe that the defendant committed the federal crime in question, s/he must immediately be brought before a magistrate and a complaint filed forthwith. This we have learned from Rule 5. What if there are no exigent circumstances, however, and the investigating agency has time to prepare a warrant? For example, the teller’s description and license tag information may lead to the conclusion that John Doe is the robber, but agents may be unable to quickly locate Doe. In such a case, the usual procedure employed in the federal system is for the investigating agent to contact a member of the United States Attorney’s Office in his/her district and to request that an attorney render a prosecutive opinion of the case. After relating the facts to this attorney, if the agent convinces the prosecutor that there is probable cause to believe Doe committed the robbery, the agent and the attorney will thereafter, in most instances, jointly draft a complaint for presentment to a magistrate. Legally, a complaint may be drafted by the officer himself, and in the real world it sometimes is. The usual procedure, however, is for the prosecutor to supervise the drafting of the complaint. This simply is a form of quality control, for the exercise of drafting the complaint insures that the prosecutor knows the facts of the case and also insures that the complaint is drafted in a technically correct manner, in accordance with the law and with Rule 3. Furthermore, and as indicated in Chapter One, such consultation may be necessary before a complaint will be issued against Mr. Doe.  If a prosecuting attorney disagrees with the officer’s assessment of the case, s/he has the authority to override the agent’s desires and to decline prosecution of the case. In any event, whether Doe’s whereabouts are immediately known or not, and regardless of whether he is arrested by an officer with a warrant in hand or not, a complaint must be filed in either instance before a magistrate.

Rule 3 of the Federal Rules of Criminal Procedure specifies that complaints must be made upon oath before a magistrate. This requirement protects us all from indiscriminate arrests, for if an officer lies in the affidavit portion of the complaint, he may subject himself to a federal prosecution. The requirement of the oath then, insures that reliable information is used to secure a complaint and, as indicated, this requirement applies before or immediately after a person is arrested.

John Doe has robbed the bank; he has been identified by a teller and through investigation of the ownership of the license tags on the get-away vehicle; his fingerprints have been lifted from the teller’s window; but he can’t be located. If a warrant is ever to be issued for Doe’s arrest, a complaint as defined in Rule 3 must first be presented to a neutral and detached magistrate for a judicial review of the probable cause determination.  If such a magistrate, after review of the affidavit in support of the complaint, finds that there is no probable cause to believe that John Doe committed the robbery, Doe may not be arrested. Unless the investigating authority convinces the magistrate that there is probable cause to believe that John Doe committed the robbery, even if he locates Doe, he will not be able to arrest him. Instead, he can drop the case, pursue the investigation and try to develop more evidence against Doe, or by-pass the complaint stage altogether and request that a prosecutor present the case to a grand jury. At some point in time, he must convince either a neutral and detached magistrate or a grand jury that there is probable cause to believe that John Doe robbed the bank. If he doesn’t, he will never be able to have Doe prosecuted for the offense. He may be able to arrest Doe without a warrant (for example, because of exigent circumstances), but he will not be able to hold Doe in custody unless he convinces the magistrate that probable cause exists.

We are assuming now that John Doe can’t be located initially and that Special Agent Smith of the FBI has prepared a complaint after consultation with an Assistant United States Attorney. After the complaint is drafted, what happens next? Reference is made to Rule 4(a) of the Federal Rules of Criminal Procedure:

“If the complaint or one or more affidavits filed with the complaint establish probable cause to believe that an offense has been committed and that the defendant committed it, the judge must issue an arrest warrant to an officer authorized to execute it. At the request of an attorney for the government, the judge must issue a summons, instead of a warrant, to a person authorized to serve it. A judge may issue more than one warrant or summons on the same complaint. If a defendant fails to appear in response to a summons, a judge may, and upon request of an attorney for the government must, issue a warrant.”

As indicated, if the magistrate agrees from a review of the complaint that there is probable cause, he shall issue the warrant which is being requested when the complaint is presented to him. Thereafter, if John Doe is located in hiding, in another state or district, or at a friend’s house, he may be lawfully arrested and taken into custody.

The complaint recites Agent Smith’s probable cause in the affidavit section therein. As indicated from a reading of this section, Agent Smith has relied upon hearsay information in support of his probable cause determination. Is this permissible under federal law? The answer is yes, but is no longer stated in Rule 4(b) of the Federal Rules of Criminal Procedure as case law has become clear on that proposition per the Committee Notes in the 2002 Rule Amendment.  Thus, while no person can be convicted of a federal crime based on hearsay accusations, such evidence may be used in support of an arrest.

If a reviewing magistrate, using a common sense approach to the determination, finds that the information in the affidavit section of the complaint meets the probable cause standard, he shall issue an arrest warrant. The reader should by now realize that a complaint is not synonymous with an arrest warrant.  The form of the arrest warrant, which is identical to that used in the federal system, complies with the requirements of Rule 4(b)(1)(A)-(D) of the Federal Rules of Criminal Procedure:

(b) Form.

   (1) Warrant. A warrant must:

       (A) contain the defendant’s name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty;

       (B) describe the offense charged in the complaint;

       (C) command that the defendant be arrested and brought without unnecessary delay before a magistrate judge or, if none is reasonably available, before a state or local judicial officer; and

       (D) be signed by a judge.

It is the warrant and not the complaint per se, which authorizes that arrest of John Doe. And a warrant shall issue in the federal system only if a judicial officer (not a police officer) finds probable cause to believe that the suspect in question has committed the crime alleged. In other words, an impartial magistrate must agree with the officer’s assessment that there is sufficient reason to apprehend the subject and hold him to answer the charges.

In some cases the whereabouts of John Doe may be known but no exigent circumstances may exist sufficient to justify his warrantless arrest.  In this case, as we have seen, the investigating agent would normally confer with an Assistant United States Attorney, draft a complaint, and thereafter obtain a warrant for the arrest of the subject. However, due to the nature of the crime and the facts of a given case, the officer or prosecutor may decide an arrest on a warrant is unnecessary. For example, John Doe may have embezzled some money from a bank but is not suspected of making any attempt to flee the district to avoid prosecution. In this type of case, the government may request that a summons issue to the subject commanding and ordering that s/he appear before the magistrate at a specified time and place.  The suspected embezzler essentially is allowed through the process to voluntarily turn himself in. If he fails to obey the summons and appear as directed, therein “a warrant shall issue” for his arrest pursuant to Rule 4.

Next Section: B. The Booking Procedure

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