What to Do About Outstanding Arrest Warrants

Have you ever been involved in a case in which the defendant was convicted of a criminal charge, did his time, and then was served with an outstanding warrant even though the warrant was pending when he was convicted of the other charge? If the warrant had been served earlier, the defendant could have taken care all of his criminal business at once. Doing so would save the court time, allow the State to come up with an appropriate resolution of all the charges, and allow the defendant to coordinate his defense and, if convicted, seek concurrent sentences or a combination of active and probationary time. If resolved before a single court at the same time, the charges could be consolidated for judgment (G.S. 15A-1340.15(b)) and also would result in fewer prior record points (G.S. 15A-1340.14(d)).

A little-noticed piece of legislation from 2015, S.L. 2015-48 (H 570), attempts to address the problem of unserved warrants. Effective October 1, 2015, the legislation directs law enforcement agencies, the Division of Adult Correction, prosecutors, and the courts to identify and attempt to resolve outstanding warrants while other charges are pending or the defendant is in custody.

Requirements of new statutes. Law enforcement’s responsibilities are in new G.S. 15A-301.1(o), which provides that when a person is taken into custody, the custodial law enforcement agency must attempt to identify all outstanding warrants against that person and notify the appropriate law enforcement agencies of the person’s location.

The courts’ responsibilities are in new G.S. 15A-301.1(p), which provides that before entering any order in a criminal case, the court must attempt to identify all outstanding warrants against the defendant and notify the appropriate law enforcement agencies of the defendant’s location. The term “any order” seems broad enough to cover orders such as the appointment of counsel or a ruling on a bond motion, which means that the court must conduct this inquiry early in the case and re-inquire periodically.

Last, new G.S. 148-10.5 directs the Division of Adult Correction to work with law enforcement, district attorneys’ offices, and the courts to develop a process, both at intake and before release of an inmate, to identify and, if feasible, resolve the inmate’s outstanding warrants before release from custody. The language in this last statute explains the General Assembly’s purpose: “to facilitate successful reentry and improve judicial efficiency.” Planning and preparing for an inmate’s release and transition is obviously complicated by unresolved charges.

The new statutes do not mandate service of outstanding warrants. Nor do they identify remedies for violations. Presumably, however, court and criminal justice officials will work to address the General Assembly’s concern about resolving unserved warrants. Further, the new statutes may bolster a defendant’s argument for relief on other grounds, described briefly below, if the State fails to serve outstanding warrants while other charges are pending or the defendant is in custody.

Constitutional considerations. The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution protects defendants from pre-accusation delay, and the Speedy Trial Clause of the Sixth Amendment protects defendants from post-accusation delay. The Law of the Land Clause (Art. I, Sec. 19) and Open Courts Clause (Art. I, Sec. 18) of the North Carolina Constitution provide similar protections. See Simeon v. Hardin, 339 N.C. 358, 377–78 (1994).

Speedy trial protections, which generally are more favorable to defendants, apply once a person is “accused” of a crime by being arrested or formally charged, such as being indicted. The North Carolina courts have not determined whether pre-accusation or post-accusation protections apply when the defendant has not yet been arrested and the charging document is an arrest warrant rather than an indictment. See State v. McCoy, 303 N.C. 1 (1981); see also John Rubin & Alyson Grine, North Carolina Defender Manual § 7.3C, When Right Attaches (Vol. 1 Pretrial, 2d ed. 2013). In misdemeanor cases tried initially in district court, speedy trial protections likely apply once an arrest warrant is issued because the warrant is the formal charge in the case. In felony cases tried in superior court, in which an indictment is necessary to give the superior court jurisdiction, the answer is not as clear. Compare State v. Utley, 956 S.W.2d 489 (Tenn. 1997) (speedy trial right does not attach until arrest or grand jury action) with Williams v. Darr, 603 P.2d 1021 (Kan. Ct. App. 1979) (speedy trial right attaches on issuance of arrest warrant).

Whether due process or speedy trial protections apply, when a prosecution has been delayed the courts inquire into, among other things, the reason for delay. The new statutes on outstanding warrants are relevant to that inquiry because they require that notice of the defendant’s location be given to the law enforcement agency responsible for any unserved warrants. Given this knowledge and the General Assembly’s emphasis on resolving outstanding warrants, it may be more difficult to justify delays in proceeding, particularly when the defendant is in custody and can be located for service.

Have the new statutes made a difference? I don’t know yet how court and law enforcement officials around the state are implementing the new requirements. Interested readers may want to check with their local authorities to learn more.