(a) Issuance.-If it appears from the complaint, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. A summons instead of a warrant may issue in the discretion of the committing magistrate. More than one warrant or summons may issue on the same complaint. If a defendant fails to appear in response to the summons, a warrant shall issue. In any case in which it is lawful for an officer to arrest a person without a warrant, the officer may, without a complaint having been filed, issue a summons in the form prescribed by statute instead of arresting the person.(b) Probable cause. – The finding of probable cause may be based upon hearsay evidence in whole or in part.(c) Form. –
(1) Warrant. -The warrant shall be signed by the committing magistrate and shall contain the name of the defendant or, if the defendant’s name is unknown, any name or description by which the defendant can be identified with reasonable certainty. It shall describe the offense charged in the complaint. It shall command that the defendant be arrested and brought before the nearest available committing magistrate of the county in which the offense is alleged to have been committed or such other committing magistrate as provided by statute, court rule or administrative order. A copy of the complaint shall be attached to the warrant.(2) Summons. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before a committing magistrate at a stated time and place. When a complaint has been filed, a copy thereof shall be attached to the summons.(d) Execution or service; and return. –
(1) By whom. – The warrant shall be executed by any officer authorized by law. The summons may be served by any person authorized to serve a summons in a civil action.(2) Territorial limits. – The warrant may be executed or the summons may be served at any place within the jurisdiction of the State of Delaware.(3) Manner. – The warrant shall be executed by the arrest of the defendant. The officer need not have the warrant at the time of the arrest but upon request shall show the warrant to the defendant as soon as practicable. If the officer does not have the warrant at the time of the arrest, the officer shall then inform the defendant of the offense charged and of the fact that a warrant has been issued. The summons shall be served upon a defendant by delivering a copy to the defendant personally, by leaving it at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by mailing a copy of the summons to the defendant’s last known address.(4) Return. – The officer executing a warrant shall make return thereof to the committing magistrate before whom the defendant is brought pursuant to Rule 5. At the request of the attorney general any unexecuted warrant shall be returned to and cancelled by a committing magistrate at the court from which it was issued. On or before the return day the person to whom a summons was delivered for service shall make return thereof to the committing magistrate before whom the summons is returnable. At the request of the attorney general made at any time while the complaint is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved or a duplicate thereof may be delivered by the committing magistrate to the authorized person for execution or service.(e) Defective complaint, warrant or summons. –
(1) Amendment. – No person arrested under a warrant or appearing in response to a summons shall be discharged from custody or dismissed because of any formal defect in the complaint, warrant or summons, but the complaint, warrant or summons may be amended so as to remedy any such formal defect.(2) Issuance of new warrant or summons. – If, prior to or during the preliminary examination it appears that the complaint, warrant or summons does not properly name or describe the defendant, or the offense with which the defendant is charged, or that although not guilty of the offense specified in such complaint, warrant or summons there is reasonable ground to believe that the defendant is guilty of some other offense, the committing magistrate shall not discharge or dismiss such defendant but shall forthwith cause a new complaint to be filed and shall thereupon issue a new warrant or summons.(f) Capias. – A capias issued by Superior Court shall be executed in the same manner as an arrest warrant. The committing magistrate before whom the defendant is brought shall hold the defendant to answer in Superior Court. Bail shall be fixed as endorsed on the capias or, in the absence thereof, as the committing magistrate deems appropriate in the circumstances.
