Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Attorney Sam’s Take: MA Default – Bench Warrant And Arrest Warrant: What Is The Difference?

Although it seems like the beginning of a horror novel, you know the scene pretty well by now. You are in your Massachusetts home in the evening just relaxing, watching reruns of Boston Legal. The knock come on the door and it is the police.

Before you know it, someone from the home is dragged out the door wearing the Commonwealth Bracelets of Shame. Maybe it is you.

“What is going on?”, you demand.

The police tell you that they are there “on a warrant”.

Your mind swirls. “On a warrant”. What does that mean? A search warrant? Arrest warrant? Bench warrant?

Before you can respond, it is all over. Maybe your lawyer can explain it to you.

Fear not. This lawyer can explain it to you.

A search warrant is a warrant granted by the court to the police to search a particular location that they could not otherwise search except given exigent circumstances or consent. The police must make a showing of probable cause in order to obtain judicial approval. Usually, this is done as part of an ongoing investigation. It, in itself, does not allow the police to arrest someone. However, this depends on what is found when the police arrive at the location and search it.

If law enforcement shows up and Uncle Charlie is on the couch with Aunt Rose and they are both doing lines of cocaine, then they are going to be arrested.

“Well, what’s the deal when they come to the door looking for my nephew Morris?”

In that case, and they insist that they have the right to simply “look around”, not really search, then they have some kind of arrest warrant.

There are a couple of kinds of arrest warrants in Massachusetts. One of them is, simply put, just what it sounds like. Usually, charges have been brought against an individual (either an indictment in the case of a felony or a criminal complaint) and this event has brought about the warrant for the person’s arrest.

Charges being brought do not always result in an arrest warrant. In fact, sometimes there is not even an arrest. A summons is sent out to the accused to show up in court for either a clerk-magistrate’s hearing or an arraignment.

The type of arrest warrant we hear most about is the bench or default warrant. This is the type of warrant that the officer is talking about should he say that he has to take Little Johnny into custody because he did not show up in court for that assault case back in 2002. The one you all figured they forgot about.

A word to the wise – they never forget.

In Massachusetts, this is most often called a “default warrant”. When the defendant does not show up in court, the judge orders the warrant and it makes its way to the authorities.

Sooner or later (usually sooner), the defendant will either be picked up on the warrant or come to court voluntarily…hopefully with a lawyer.

Particularly in this computer age, a warrant will catch up to you. The longer you wait, the more you risk and the higher bail you will likely face.

Yesterday, I wrote about how an attorney can help you should there be a warrant out for your arrest.

“Hey, wait a minute! I thought this week’s ‘Attorney Sam’s Take’ was going to be about when to talk to the police”!

You are correct. However, there seemed to be alittle confusion that I wanted to clear up about this subject. However, I will post the blog on talking to law enforcement on Monday, kind of turning the week around in terms of blogging.

In the meantime, should you find yourself in the position of dealing with an outstanding warrant, or if you have a criminal matter to discuss, please feel free to call me at (617) 206-1942.

Have a great, safe and law-abiding weekend!

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