cdTOCtest

v. Powell, 162 N.J. 397, 410-411 (1998), cert. denied,
U.S. , 120 S.Ct. 2220, 147 L.Ed. 2d 251
(2000); Sanducci v. City of Hoboken, 315 N.J. Super. at
484-85 (in both cases, defendant should have been
issued a Complaint-Summons and released on a plain
reading of R. 3:4-1(b)).

VI. ARRESTS WITH WARRANTS

A. Who May Issue

An arrest warrant is issued from the municipality or
city where the offense is alleged to have been committed
or where the defendant is found. In that location, a
municipal judge, clerk, deputy clerk administrator,
deputy administrator, can issue an arrest warrant upon a
finding of good cause. R. 3:2-3; R. 3:3-1; N.J.S.A.
2B:12-21. A police officer can issue a complaint
summons for an offense without the requirement that
probable cause be found by a judicial officer. R. 3:3-
1(b)(2); State v. Kennison, 248 N.J. Super. 126 (App. Div.
1991).

The probable cause determination in issuing a
warrant must be made by an impartial, neutral judicial
officer. Wong Sun v. United States, 371 U.S. 471, 481-82,
83 S.Ct. 407, 9 L.Ed.2d 441 (1963); see State v. Jones,
143 N.J. at 4; see also Illinois v. Gates, 462 U.S. at 213,
103 S.Ct. at 2332, 76 L.Ed.2d at 527, holding that the
task of the magistrate issuing a search warrant is to make
a practical, common-sense decision, given all the
circumstances in the affidavit before him, including the
“veracity” and “basis of knowledge” of persons supplying
hearsay information, as to whether there is a fair
probability that contraband or evidence of a crime will be
found in a particular place. Court clerks and deputy
court clerks possess the necessary neutrality and
qualifications to issue warrants. Shadwick v. Tampa, 407
U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1968); State
v. Ruotolo, 52 N.J. 508 (1968); R. 3:3-1(a)(1).

B. Form and Content of Warrant

An arrest warrant is made on a Complaint-Warrant
form (CDR2). R. 3:2-3. The warrant must contain the
defendant’s name, or if unknown, “any name or
description which identifies the defendant with
reasonable certainty.” The warrant shall also set forth the
offense charged in the complaint and shall be signed by
the judge, clerk, deputy clerk, municipal court
administrator or deputy administrator. Id. See also, R.
3:3-1 (issuance of an arrest warrant or summons by

complaint). When probable cause is found, the arrest

warrant or summons must state so on its face. R. 3:3-1(a).

C. Execution

An arrest warrant shall be executed by an “officer

authorized by law.” R. 3:3-3(a). The officer need not

have the warrant in his possession at the time of arrest. R.

3:3-3(c). It is sufficient for the officer to inform the

defendant that a warrant has been issued and the exact

offense charged. If requested by defendant, the officer

should show the warrant to the defendant as soon as

possible. R. 3:3-3(c).

Where a criminal complaint is not signed by a

complainant while under oath in the presence of a

judicial officer, the arrest warrant issued pursuant to the

complaint is defective. State v. Bobo, 222 N.J. Super. 30

(App. Div. 1987). See State v. Gonzalez, 114 N.J. 592

(1989) (officer’s failure to sign traffic summons was not

fatal defect); State v. Brennan, 229 N.J. Super. 342 (App.

Div. 1988) (officer’s failure to sign summons within

thirty days of issuance was fatal defect); State v. Latorre,

228 N.J. Super. 314 (App. Div. 1988) (whether officer’s

failure to sign DWI summons rises to level of fatal defect

depends upon circumstances such as fundamental

fairness or prejudice to defendant). In Bobo, the

complainant gave the relevant information to a police

officer who typed up the complaint and went, without

the complainant, to a deputy court clerk who issued the

warrant. Such a procedure was held to violate the Fourth

Amendment and the New Jersey Constitution.

In State v. Egles, 308 N.J. Super. 124 (App. Div.

1998), the Appellate Division reversed a dismissal of a

complaint charging disorderly conduct and resisting

arrest. The court noted that an arrest warrant could be

based upon a disorderly conduct complaint, but here the

warrant itself was not issued until after the police had

arrested defendant. The court ruled that the trial court

should have granted the State’s request to amend the

Complaint-Warrant to a Complaint-Summons pursuant

to R. 3:3-4, since the complaint remained the same and

only the means of process changed. Dismissing the

complaint was too drastic an action for a mere defect of

process which could have been cured by amending the

complaint to a Complaint-Summons. The appropriate

remedy for an improper arrest is suppression of any

evidence seized in connection with that arrest, not

dismissal of the entire complaint.

Note, according to the Vienna Convention,

whenever a foregin national is arrested, the foreign

national should be informed of the right to contact the