Quick answer

A warrant of arrest and a search warrant are both judicial orders issued by a judge, but they serve different purposes and have different requirements. A warrant of arrest is an order directing a peace officer to take a specified person into custody so that they may answer for the commission of an offense; it is directed at a person. A search warrant is an order in writing, in the name of the People, signed by a judge and directed to a peace officer, commanding them to search a specifically described place for personal property described in the warrant and to bring it before the court; it is directed at a place and things. Both share the constitutional requirement that no warrant shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses they may produce. However, there are key differences. For a warrant of arrest, the judge determines probable cause that a crime has been committed and that the person to be arrested probably committed it; the warrant must particularly describe the person to be seized. For a search warrant, the judge must personally examine, in the form of searching questions and answers, the complainant and witnesses, and the warrant must particularly describe the place to be searched and the things to be seized (a general warrant, which does not particularly describe them, is void); a search warrant has additional requirements, such as being issued for only one specific offense, and it is generally served in the daytime unless the affidavit asserts the property is on the person or place to be searched, and it is valid for a limited period (generally ten days). A search warrant is also personal to the place and must be enforced with the presence of witnesses in certain cases. So a warrant of arrest authorizes seizing a person on probable cause of their guilt, while a search warrant authorizes searching a particularly described place for particularly described things, each with its own strict requirements.

Different Purposes

A warrant of arrest orders taking a person into custody. A search warrant authorizes searching a place for described things and bringing them to court.

Shared Constitutional Requirement

Both need probable cause determined personally by a judge after examination under oath of the complainant and witnesses. Neither may be a general warrant.

Key Differences

Practical Takeaways

Frequently Asked Questions

What is the difference between a warrant of arrest and a search warrant? A warrant of arrest orders a peace officer to take a specified person into custody. A search warrant authorizes searching a particularly described place for particularly described things and bringing them before the court.

What do both warrants require? Both require probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses, and neither may be a general warrant.

What are the special requirements of a search warrant? It must particularly describe the place to be searched and the things to be seized, be issued for only one specific offense, generally be served in the daytime, and it is valid for a limited period, generally ten days.

What is a general warrant and why is it void? A general warrant is one that does not particularly describe the person to be arrested or the place and things to be searched and seized. It is void because it violates the constitutional requirement of particularity, which guards against fishing expeditions.

This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.

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