What Documents Properly Support an Extradition Warrant?

Before an “asylum state,” i.e. California, can issue an extradition warrant, the judge must have three things to ensure the order to move someone in custody to the demanding state is proper.

First, the asylum state must receive a formal, written demand for extradition (called a requisition) from the governor (executive authority) of the demanding state (Penal Code § 1548.2 requires this).  This demand is often a simple, short demand that is one page in length and given to the prosecutor in the demanding state, who then provides it to the prosecutor in the asylum state.
 
However, the requisition must be signed by the governor of the demanding state or a person performing the function of the governor (Penal Code § 1548(b)) and should state the name of the person sought and the crime charged or the reason that the person is to be returned to the demanding state.

The requisition must also allege that the case falls within one of the statutory bases for extradition (Penal Code § 1548.2) and that the person sought was present in the demanding state at the time the crime was committed and thereafter fled from the demanding state.  If the requisition does not have these two allegations, it is defective and extradition may be successfully resisted (In re Brewer (1943) 61 Cal.App.2d 388, 143 P.2d 33).

If applicable, the requisition should add that the person sought has escaped from confinement or has violated the terms of his or her bail, probation or parole (Penal Code § 1548.2).  However, if this allegation is not included, but applies, the requisition is not defective as long as the prior required allegations are included.  In re Fedder (1956) 143 Cal.App.2d 103, 299 P.2d 881; Gottfried v. Cronin (Colo. 1976) 555 P.2d 969.

Second, the asylum state must receive a certified copy of an indictment, information, or affidavit made before a magistrate or a certified copy of a judgment or sentence if the person has been convicted (Penal Code § 1548.2).

A complaint, sworn before and signed by a magistrate, is an “affidavit made before a magistrate” (see People v. Mack (1977) 66 Cal.App.3d 839, 136 Cal.Rptr. 283).  The definition of a magistrate varies by state.  Usually, a magistrate is a judicial officer (see Penal Code § 808), however, in some circumstances, it can be a court clerk or a notary public (see Compton v. Alabama (1909) 214 U.S. 1, 53 L.Ed. 885, 29 S. Ct. 605).

If an affidavit is being used, it should not be made “on information and belief” In re Spears (1891) 88 C. 640, 26 P. 608.  It will not be considered defective, however, if the sources of the information and belief are explained or included through supplementary documents such as affidavits or police reports.  See In re Cooper (1960) 53 Cal.2d 772, 3 Cal.Rptr. 140.

Third, the asylum state must have a copy of any warrant issued if one was issued, however, if one was never issued, then it is not required (Penal Code § 1548.2; In re Cooper (1960) 53 Cal.2d 772, 3 Cal.Rptr. 140).

For more information about extradition issues, please click on the following articles:
  1. What Is an Extradition Hearing and How to Fight Extradition
  2. What Is Bail and Can It Be Reduced?
  3. What Are the Deadlines for Extradition or Being Released?
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