(a) Issuance.
(1)Request by Prosecution. Upon the filing of a felony complaint in the county court, the prosecuting attorney shall request that the court issue either a warrant for the arrest of the defendant, or a summons to be served on the defendant.
(2)Affidavits or Sworn Testimony. If a warrant is requested, the felony complaint must contain or be accompanied by a sworn statement of facts establishing probable cause to believe that a criminal offense has been committed, and that the offense was committed by the person for whom the warrant is sought. In lieu of such a sworn statement, the felony complaint may be supplemented by sworn testimony of such facts. Such testimony must be transcribed and then signed under oath by the witness giving the testimony.
(3) Summons in Lieu of Warrant. Except in class 1, class 2, and class 3 felonies, level 1 and level 2 drug felonies, and unclassified felonies punishable by a maximum penalty of more than 10 years, whenever a felony complaint has been filed prior to the arrest of the person named as defendant therein, the court shall have power to issue a summons commanding the appearance of the defendant in lieu of an arrest warrant, unless a law enforcement officer presents in writing a basis to believe there is a significant risk of flight or that the victim’s or public’s safety may be compromised. If empowered to issue a summons under this subsection (a)(3), the court shall issue a summons instead of an arrest warrant when the prosecuting attorney so requests.
(4)Standards Relating to Issuance of Summons. Except in class 1, class 2, and class 3 felonies, level 1 and level 2 drug felonies, and unclassified felonies punishable by a maximum penalty of more than 10 years the general policy shall favor issuance of a summons instead of a warrant for the arrest of the defendant. When an application is made to a court for issuance of an arrest warrant or summons, the court may require the applicant to provide such information as reasonably is available concerning the following:
(I) The defendant’s residence;
(II) The defendant’s employment;
(III) The defendant’s family relationships;
(IV) The defendant’s past history of response to legal process; and
(V) The defendant’s past criminal record.
(5)Failure to Appear. If any person properly summoned pursuant to this Rule fails to appear as commanded by the summons, the court shall forthwith issue a warrant for the arrest of that person.
(6)Corporations. When a corporation is charged with the commission of an offense, the court shall issue a summons setting forth the nature of the offense and commanding the corporation to appear before the court at a certain time and place.
(b) Form.
(1) Warrant. The arrest warrant shall be a written order issued by a judge of a court of record directed to any peace officer and shall:
(I) State the defendant’s name or if that is unknown, any name or description by which the defendant can be identified with reasonable certainty;
(II) Command that the defendant be arrested and brought without unnecessary delay before the nearest available judge of a county or district court;
(III) Identify the nature of the offense;
(IV) Have endorsed upon it the amount of bail if the offense is bailable; and
(V) Be signed by the issuing county judge.
(2) Summons. If a summons is issued in lieu of a warrant pursuant to this Rule, the summons shall:
(II) State the defendant’s name and address;
(III) Identify the nature of the offense;
(IV) State the date when issued and the county where issued;
(V) Be signed by the judge or clerk of the court with the title of the office; and
(VI) Command the person to appear before the court at a certain time and place.
(c) Execution or Service and Return.
(1) Warrant.
(I) By Whom. The warrant may be executed by any peace officer.
(II) Territorial Limits. The warrant may be executed anywhere within Colorado.
(III) Manner. The warrant shall be executed by arresting the defendant. The warrant need not be in the officer’s possession at the time of the arrest, in which event the officers shall then inform the defendant of the offense and of the fact that a warrant has been issued, and upon request shall show the warrant to the defendant as soon as possible. If the warrant is in the officer’s possession at the time of the arrest, then the officer shall show the warrant to the defendant immediately upon request.
(IV) Return. The peace officer executing a warrant shall make return thereof to the issuing court. At the request of the prosecuting attorney any unexecuted warrant shall be returned and cancelled. At the request of the prosecuting attorney, made while a complaint is pending, a warrant returned unexecuted and not cancelled, or a duplicate thereof, may be delivered by the county judge to any peace officer or other authorized person for execution.
(2) Summons.
(I) By Whom. The summons may be served by any person authorized to effect service in a civil action.
(II) Territorial Limits. The summons may be served anywhere within Colorado.
(III) Manner. A summons issued pursuant to this Rule may be served in the same manner as the summons in a civil action or by mailing it to the defendant’s last known address, not less than 14 days prior to the time the defendant is required to appear, by registered mail with return receipt requested or certified mail with return receipt requested. Service by mail shall be complete upon the return of the receipt signed by the defendant or signed on behalf of the defendant by one authorized by law to do so. The summons for the appearance of a corporation may be served by a peace officer in the manner provided for service of summons upon a corporation in a civil action.
(IV) Return. At least one business day prior to the return day, the person to whom a summons has been delivered for service shall make return thereof to the county court before whom the summons is returnable. At the request of the prosecuting attorney, made while a complaint is pending, a summons returned unserved, or a duplicate thereof, may be delivered by the county judge to any peace officer or other authorized person for service.
Source: c2III amended and adopted October 15, 2009, effective January 1, 2010; c2III and c2IV amended and adopted December 14, 2011, effective July 1, 2012; amended and Adopted by the Court, En Banc, September 11, 2017, effective immediately.
Annotation I. General Consideration. Applied in People v. Kelderman, 44 Colo. App. 487, 618 P.2d 723 (1980). II. Issuance. Probable cause necessary for issuance of warrant. To support the issuance of an arrest warrant, the complaint must comply with the probable cause requirements of the fourth amendment to the United States constitution, § 7 of art. II, Colo. Const., and this rule. People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971). And the existence of probable cause must be determined by member of the judiciary, rather than by a law enforcement officer who is employed to apprehend criminals and to bring charges against those who choose to violate the law. People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971). Judge not to accept mere conclusion of complainant. In determining whether or not probable cause exists, a judge should not accept without question the complainant’s mere conclusion that the person whose arrest is sought has committed a crime. People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971). But should require and examine underlying facts. Before a warrant for arrest can be issued, the judicial officer issuing such a warrant must be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971). A complaint standing alone will not support an arrest warrant where no facts are set forth to establish probable cause. Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972). So judge may require supplemental sworn testimony or amendment of complaint. Should the judge to whom application has been made for the issuance of an arrest warrant determine that the complaint is insufficient, he can require that sworn testimony be offered to supplement the complaint or that the complaint be amended to set forth additional facts if an arrest warrant is to be issued. And under § 7 of art. II, Colo. Const., any testimony taken to supplement the complaint must be reduced to writing and signed by the witness or witnesses who offer the testimony under oath. People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971). Warrant and supporting affidavits may overcome insufficiency of complaint. Where federal warrants are supported by affidavits which square with all constitutional requirements, they provide a legitimate basis for an arrest, notwithstanding the insufficiency of the complaint to support an arrest warrant. Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972). III. Execution. There are no constitutional requirements dictating that an arrest warrant be executed at the earliest opportunity. People v. Nisser, 189 Colo. 471, 542 P.2d 84 (1975). Nor does this rule contain limitations regarding the time within which an arrest warrant must be executed. People v. Nisser, 189 Colo. 471, 542 P.2d 84 (1975). No abuse of process where delay in service not prejudicial. Where the record contains no evidence that the delay in the service of an arrest warrant was intended to prejudice the defendant-or that defendant was, in fact, prejudiced by the six-day postponement of her arrest, but on the other hand, uncontroverted evidence indicates that the delay was caused by the perceived need to protect the identity of an undercover agent in a collateral investigation, the delay in the service of the arrest warrant was not an abuse of process. People v. Nisser, 189 Colo. 471, 542 P.2d 84 (1975). Where and by whom execution authorized. Arrest warrants are not territorially limited and, therefore, may be executed anywhere in Colorado by an officer with authority to arrest in the particular jurisdiction in which the person named in the warrant is found. People v. Hamilton, 666 P.2d 152 (Colo. 1983). Arresting officers are not required to have arrest warrants with them at the time of arrest. Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972). And execution by unauthorized person immaterial if authorized person present. It is immaterial who executes an arrest warrant provided that individuals with lawful authority to make an arrest are actually present at the scene of the arrest and participate in the arrest process. People v. Schultz, 200 Colo. 47, 611 P.2d 977 (1980).
For service of a summons in a civil action, see C.R.C.P. 4.
