A motion to quash a warrant is a request for a court to find a warrant, or part of a warrant, to be invalid. “Quash” means to nullify, void or declare invalid. The two most common types of warrants are search warrants and arrest warrants.
If a search warrant is quashed evidence can be suppressed or thrown out of court. Arrest warrants and bench warrants can be
- quashed,
- executed,
- cleared, or
- recalled.
What is a motion to quash and suppress a search warrant?
A motion to quash a search warrant and suppress evidence is a claim that evidence was seized in violation of the Fourth Amendment.1 Motions to quash a search warrant are usually made AFTER a search and seizure has been completed.
A motion to quash and traverse a search warrant claims that the supporting affidavit contained fatal mistakes or omissions. This is also known as a Franks Motion.2
Search warrant definition
Search warrants are court orders that allow law enforcement to search:
- a person,
- a residence,
- a vehicle,
- a place of business, OR
- any other specified place suspected of containing evidence of illegal activity.
The Fourth Amendment of the United States Constitution guarantees:
- The right of the people to be secure in their persons and houses against unreasonable searches and seizures, and no Warrants shall issue, but upon probable cause, particularly describing the place to be searched, and the persons or things to be seized.3
Obtaining and executing search warrants
To obtain a search warrant, law enforcement must submit an application to a magistrate (judge). The application includes an affidavit under penalty of perjury that:
- names or describes the person to be searched or searched for,
- particularly describes the property, thing, or things to be searched for, and
- specifically describes the place to be searched.4
When law enforcement executes the warrant, the warrant authorizes the seizure of the described evidence. A motion to quash a search warrant and suppress evidence claims that the warrant is:
- insufficient on its face,
- lacks probable cause, OR
- resulted in the seizure of evidence not described in the warrant.5
Can a search warrant be quashed before a search occurs?
Yes, it is possible to make a motion to quash BEFORE a search warrant is executed. Here is a real-life example:
- A woman received an email from Facebook saying they had been served with a search warrant to search her account. Facebook informed her they would give the sheriff the requested information in six days unless she or her criminal defense attorney filed a motion to quash with the court. After the ACLU filed a Motion to Quash Search Warrant on her behalf, the prosecutor withdrew the search warrant.6
A criminal defense lawyer (including public defenders) can file a motion asking for a court hearing to quash warrants.
What is a motion to quash an arrest warrant?
A motion to quash an arrest warrant is a claim that an arrest warrant is invalid or illegal. If a person believes that there is an invalid arrest warrant outstanding, a motion to quash an arrest warrant can be filed.
An arrest warrant is issued when a magistrate is satisfied that there are reasonable grounds to believe that a person has committed a felony or a misdemeanor.7 A warrant for arrest is a legal process that orders that:
- the person named in the warrant be arrested by police officers, and
- brought before a magistrate for a court appearance.
What must be in an arrest warrant?
To be valid, an arrest warrant must specify the:
- name of the defendant (or fictitious name and adequate description),
- time of issuance,
- city or county of issuance,
- signature and title of the magistrate, judge, justice, or other issuing authority, and
- name of the court or other issuing agency.8
Please note that an arrest warrant is slightly different than a bench warrant, even though both will subject a person to arrest for a criminal case.
What is a bench warrant?
A bench warrant is an arrest warrant issued by a judge in a superior court, district court, or municipal court for a failure to appear. Typically, a bench warrant of arrest may be issued when a defendant fails to appear after being:
- ordered to personally appear in court at a specific time and place,
- released from custody on bail and ordered to appear at a specific time and place,
- released from custody on their own recognizance and promise to appear,
- released upon citation and signed a promise to appear in court,
- authorized to appear by counsel and the court ordered that the defendant personally appear.9
How do you quash or recall a bench warrant?
To quash a bench warrant, a case needs to be put on the calendar for a quash hearing in the courtroom where it was issued. This is typically done by filing a written motion with the court clerk’s office, which will give the person a new court date.
Then on that court date, an oral motion to quash or recall can be made to the judge. The judge will quash or recall the warrant because the person has now complied with the order to appear.
Please note that the person who failed to appear on an outstanding warrant may face certain penalties. These could include bail, jail time, or added charges. See our faqs on “How to Clear a Bench Warrant.”10
Contact an attorney for legal advice on how to keep your criminal record/public records clear following a warrant. Court rules vary by jurisdiction.
Legal References
- See, for example, California Penal Code 1538.5 PC.
- Franks v. Delaware (1978) 438 U.S. 154.
- Fourth Amendment, U.S. Constitution.
- See, for example, .
- See note 1.
- Motion to Quash Search Warrant (March 8, 2017) 17-1-00291-0.
- See, for example, California Penal Code sections 813 and 827.1 PC.
- See, for example, State v. Harrison (Ohio Supreme Court, 2021) .
- See, for example, California Penal Code 978.5 PC.
- See, for example, State v. NewKirk (Washington State, 1993) .
