Ohio Crim. R. 4

As amended through October 29, 2024

Rule 4 - Warrant or Summons; Arrest

(A)Issuance

(1) Upon complaint

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, or a summons in lieu of a warrant, shall be issued by a judge, magistrate, clerk of court, or officer of the court designated by the judge, to any law enforcement officer authorized by law to execute or serve it.

The finding of probable cause may be based upon hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. Before ruling on a request for a warrant, the issuing authority may require the complainant to appear personally and may examine under oath the complainant and any witnesses. The testimony shall be admissible at a hearing on a motion to suppress, if it was taken down by a court reporter or recording equipment.

The issuing authority shall issue a summons instead of a warrant upon the request of the prosecuting attorney, or when issuance of a summons appears reasonably calculated to ensure the defendant's appearance.

(2) By law enforcement officer with warrant

In misdemeanor cases where a warrant has been issued to a law enforcement officer, the officer, unless the issuing authority includes a prohibition against it in the warrant, may issue a summons in lieu of executing the warrant by arrest, when issuance of a summons appears reasonably calculated to ensure the defendant's appearance. The officer issuing the summons shall note on the warrant and the return that the warrant was executed by issuing summons, and shall also note the time and place the defendant shall appear. No alias warrant shall be issued unless the defendant fails to appear in response to the summons, or unless subsequent to the issuance of summons it appears improbable that the defendant will appear in response to the summons.

(3) By law enforcement officer without a warrant

In misdemeanor cases where a law enforcement officer is empowered to arrest without a warrant, the officer may issue a summons in lieu of making an arrest, when issuance of a summons appears reasonably calculated to ensure the defendant's appearance. The officer issuing the summons shall file, or cause to be filed, a complaint describing the offense. No warrant shall be issued unless the defendant fails to appear in response to the summons, or unless subsequent to the issuance of summons it appears improbable that the defendant will appear in response to the summons.

(B)Multiple issuance; sanction

More than one warrant or summons may issue on the same complaint. If the defendant fails to appear in response to summons, a warrant or alias warrant shall issue.

(C)Warrant and summons: form

(1) Warrant

The warrant shall contain the name of the defendant or, if that is unknown, any name or description by which the defendant can be identified with reasonable certainty, a description of the offense charged in the complaint, whether the warrant is being issued before the defendant has appeared or was scheduled to appear, and the numerical designation of the applicable statute or ordinance. A copy of the complaint shall be attached to the warrant.

(a) If the warrant is issued after the defendant has made an initial appearance or has failed to appear at an initial appearance, the warrant shall command that the defendant be arrested and either of the following:

(i) That the defendant shall be required to post a sum of cash or secured bail bond with the condition that the defendant appear before the issuing court at a time and date certain;

(ii) That the defendant shall be held without bail until brought before the issuing court without unnecessary delay.

(b) If the warrant is issued before the defendant has appeared or is scheduled to appear, the warrant shall so indicate.

(2) Summons

The summons shall be in the same form as the warrant, except that it shall not command that the defendant be arrested, but shall order the defendant to appear at a stated time and place and inform the defendant that he or she may be arrested if he or she fails to appear at the time and place stated in the summons. A copy of the complaint shall be attached to the summons, except where an officer issues summons in lieu of making an arrest without a warrant, or where an officer issues summons after arrest without a warrant.

(D)Warrant and summons: execution or service; return

(1) By whom

Warrants shall be executed and summons served by any officer authorized by law. Unless a summons is being issued in lieu of arrest under divisions (A)(2) and (A)(3), a summons may also be served by the clerk.

(2) Territorial limits

Warrants may be executed or summons may be served at any place within this state.

(3) Manner

Except as provided in division (A)(2) of this rule, warrants shall be executed by the arrest of the defendant. The officer need not have the warrant in the officer's possession at the time of the arrest. In such case, the officer shall inform the defendant of the offense charged and of the fact that the warrant has been issued. A copy of the warrant shall be given to the defendant as soon as possible.

Summons may be served upon a defendant who is an individual by delivering a copy to the defendant personally, or by leaving it at the defendant's usual place of residence with some person of suitable age and discretion then residing therein, or, except when the summons is issued in lieu of executing a warrant by arrest, by mailing it to the defendant's last known address by United States certified or express mail with a return receipt requested or by commercial carrier service utilizing any form of delivery requiring a signed receipt. When service of summons is made by United States certified mail or express mail it shall be served by the clerk in the manner prescribed by Civ.R. 4.1(A)(1)(a). When service of summons is made by a commercial carrier service, it shall be served in the manner prescribed by Civ. R. 4.1(A)(1)(b). Summons issued under division (A)(2) of this rule in lieu of executing a warrant by arrest shall be served by personal or residence service. Summons issued under division (A)(3) of this rule in lieu of arrest and summons issued after arrest under division (F) of this rule shall be served by personal service only.

A summons to a defendant who is not an individual shall be served in the manner provided for service in Civ.R. 4 through 4.2 and 4.6(A) and (B), except that the waiver provisions of Civ.R. 4(D) shall not apply.

(4) Return

The officer executing a warrant shall make return of the warrant to the issuing court before whom the defendant is brought pursuant to Crim.R. 5. At the request of the prosecuting attorney, any unexecuted warrant shall be returned to the issuing court and canceled by a judge of that court.

When the copy of the summons has been served by delivering a copy to the defendant personally or by leaving it at the defendant's usual place of residence with some person of suitable age and discretion then residing therein, the person serving summons shall endorse that fact on the summons and return it to the clerk, who shall make the appropriate entry on the appearance docket. When the copy of the summons has been served by mailing it to the defendant's last known address by United States certified or express mail or by a commercial carrier service utilizing any form of delivery requiring a signed receipt, it shall be docketed and returned in the manner prescribed by Civ.R. 4.1(A)(2).

When the person attempting to serve summons by delivering a copy to the defendant personally or by leaving it at the defendant's usual place of residence with some person of suitable age and discretion then residing therein is unable to serve a copy of the summons within twenty-eight days of the date of issuance, the person serving summons shall endorse that fact and the reasons for the failure of service on the summons and return the summons and copies to the clerk, who shall make the appropriate entry on the appearance docket. If the return of service of a copy of the summons attempted to be served by United States certified or express mail or by a commercial carrier service utilizing any form of delivery requiring a signed receipt shows failure of delivery, the clerk shall file the return receipt or returned envelope in the records of the case.

At the request of the prosecuting attorney, made while the complaint is pending, a warrant returned unexecuted and not canceled, or a summons returned unserved, or a copy of either, may be delivered by the court to an authorized officer for execution or service.

(E)Arrest

(1) Arrest upon warrant

(a) Where a person is arrested upon a warrant that states it was issued before a scheduled initial appearance, or the warrant is silent as to when it was issued, the judicial officer before whom the person is brought shall determine bail.

(b) Where a person is arrested upon a warrant that states it was issued after an initial appearance or the failure to appear at an initial appearance and the arrest occurs either in the county from which the warrant issued or in an adjoining county, the arresting officer shall, except as provided in division (F) of this rule, where the warrant provides for the posting of bail, permit the arrested person to post a sum of cash or secured bail bond as contained in the warrant with the requirement that the arrested person appear before the warrant issuing court at a time and date certain, or bring the arrested person without unnecessary delay before the court that issued the warrant.

(c) Where a person is arrested upon a warrant that states it was issued after an initial appearance or the failure to appear at an initial appearance and the arrest occurs in any county other than the county from which the warrant was issued or in an adjoining county, the following sequence of procedures shall be followed:

(i) Where the warrant provides for the posting of bail, the arrested person shall be permitted to post a sum of cash or secured bail bond as contained in the warrant with the requirement that the arrested person appear before the warrant issuing court at a time and date certain.

(ii) The arrested person may in writing waive the procedures in division (E)(1)(c)(iii) of this rule after having been informed in writing and orally by a law enforcement officer of those procedures, and consenting to being removed to the warrant issuing court without further delay. This waiver shall contain a representation by a law enforcement officer that the waiver was read to the arrested person and that the arrested person signed the waiver in the officer's presence.

(iii) Where the warrant is silent as to the posting of bail, requires that the arrested person be held without bail, the arrested person chooses not to post bail, or the arrested person chooses not to waive the procedures contained in division (E)(1) of this rule, the arrested person shall, except as provided in division (F) of this rule, be brought without unnecessary delay before a court of record therein, having jurisdiction over such an offense, and the arrested person shall not be removed from that county until the arrested person has been given a reasonable opportunity to consult with an attorney, or individual of the arrested person's choice, and to post bail to be determined by the judge or magistrate of that court not inconsistent with the directions of the issuing court as contained in the warrant or after consultation with the issuing court. If the warrant is silent as to the posting of bail or holding the arrested person without bail, the court may permit the arrested person to post bail, hold the arrested person without bail, or consult with the warrant issuing court on the issue of bail.

(d) If the arrested person is not released, the arrested person shall then be removed from the county and brought before the court issuing the warrant, without unnecessary delay and not later than the time prescribed by statute for the defendant's first bail hearing. If the arrested person is released, the release shall be on condition that the arrested person appear in the issuing court at a time and date certain.

(2) Arrest without warrant. Where a person is arrested without a warrant and has not been released from custody pursuant to division (F) of this rule, the arresting officer shall, complete the following tasks:

(a) Promptly cause to be prepared a criminal complaint or sworn statement setting forth probable cause supporting the arrest. A judge or magistrate of a court having jurisdiction over the offense shall review for probable cause the complaint or sworn statement without unnecessary delay and, notwithstanding Crim. R. 45, not later than 48 hours after the arrest. The probable cause review need not be conducted in open court or on the record. If the reviewing judge or magistrate does not find that the complaint or statement establishes probable cause to believe an offense has been committed, the defendant shall be released for that offense.

(b) Bring the arrested person without unnecessary delay, and not later than the time prescribed by statute for the defendant's first bail hearing, before a court having jurisdiction of the offense, and shall file or cause to be filed a complaint describing the offense for which the person was arrested. Thereafter the court shall proceed in accordance with Crim. R. 5.

(F)Release after arrest Except when otherwise prohibited by law, in misdemeanor cases where a person has been arrested with or without a warrant, the arresting officer, the officer in charge of the detention facility to which the person is brought or the superior of either officer, without unnecessary delay, may release the arrested person by issuing a summons unless it appears that issuance of a summons will not reasonably assure the person's appearance. The officer issuing such summons shall note on the summons the time and place the person must appear and, if the person was arrested without a warrant, shall file or cause to be filed a complaint describing the offense. No warrant or alias warrant shall be issued unless the person fails to appear in response to the summons.

(G)Use of electronically produced criminal complaint and summons

(1) Local rules adopted by a court pursuant to the Rules of Superintendence for the Courts of Ohio may provide for the use of a criminal complaint and summons that is produced by computer or other electronic means. A criminal complaint and summons produced by computer or other electronic means shall conform in all substantive respects to the "Ohio Rules of Criminal Procedure" set forth in the Appendix of Forms. The complaint and summons paper shall be of sufficient quality to allow the court record copy to remain unchanged for the period of the retention schedule for the various criminal offenses as prescribed by Rule 26.05 of the Rules of Superintendence for the Courts of Ohio. The court record for the complaint and summons shall be filed with the court or may be filed electronically as authorized by local rule and division (G)(2) of this rule.

(2) Local rules adopted by a court pursuant to the Rules of Superintendence for the Courts of Ohio may also provide for the filing of the criminal complaint and summons by electronic means. If a criminal complaint and summons is issued at the scene of an alleged offense, the local rule shall require that the issuing officer serve the defendant with the defendant's paper copy of the criminal complaint and summons as required by division (D) of this rule. A law enforcement officer who files a criminal complaint and summons pursuant to divisions (G)(1) or (G)(2) of this rule and electronically affixes the officer's signature thereto, shall also have his/her signature attested to by either a "peace officer," "judge," "clerk," or "deputy clerk" after which the complaint and summons shall be considered to have been certified and shall have the same rights, responsibilities, and liabilities as with all other criminal complaints and summons issued pursuant to these rules.

Ohio. Crim. R. 4

Effective: 7/1/1973; amended effective 7/1/1975; 7/1/1990; 7/1/1998; amended effective 7/1/2018; amended April 24, 2019, effective 7/1/2019; amended effective 7/1/2022; amended effective 7/1/2023; amended effective 7/1/2024.

Proposed Staff Note (July 1, 2024, Amendment)

Crim.R. 4 has been amended to explicitly conform with constitutional and statutory requirements concerning warrantless arrests and the processing of persons who have been arrested and not yet released on bail.

Probable Cause Review for Warrantless Arrests

With respect to warrantless arrests, the Rule has been amended to require that the arresting officer promptly provide a judicial officer having jurisdiction over the offense with a sworn statement setting forth the officer's belief that there is probable cause to hold the person arrested for an offense. The judicial officer must review the officer's statement and make an independent probable cause determination without unnecessary delay and in no event later than 48 hours after arrest.

This requirement, set forth in division (E)(2)(i), is constitutionally required. Post-arrest detention is a Fourth Amendment "seizure" that must be based on probable cause. Constitutionally, the requirement is that the probable cause determination be made "promptly after arrest" by a neutral and detached government official. See, Gerstein v. Pugh, 420 U.S. at 125. Anything less than 48 hours from the time of the arrest until the determination of probable cause is considered sufficiently prompt so as to avoid a systemic challenge to that jurisdiction's arrest procedures (although, on an individual basis, a delay could be violative of the Fourth Amendment even if the probable cause determination is made in less than 48 hours). County of Riverside v. McLaughin, 500 U.S. 44, 111 S.Ct. 166, 1114 L.Ed.2d 49 (1991).

Riverside underscored that the police do not comply with the Fourth Amendment when they arrest a person without a warrant and then use the ensuing time to establish probable cause for the already-executed warrantless arrest. The 48 hours contemplated by Riverside represents the outside time frame by which police, who must have had probable cause when they made the arrest in the first place, and the court must ensure that a neutral and detached government official will have reviewed the complaint for probable cause. The 48 hours contemplated as the outer deadline in Riverside is inclusive of weekends and holidays; for that reason, the Rule explicitly excludes Crim.R. 45 's normal computation from the deadline for determining probable cause for the warrantless arrest.

The determination of probable cause required within 48 hours of arrest need not be conducted pursuant to a hearing or in open court. Rather, much like judicial review of an application for a search warrant under Crim.R. 41, judicial review of the arresting officer's probable cause statement can be conducted informally, outside of court, and outside the presence of either the parties or any alleged victim of the offense of arrest. The judicial officer's ex parte review of the arresting officer's sworn statement can be conducted via remote communication.

First Appearance of Defendant

R.C. 2937.011(J)(1) requires that persons who have been arrested and not yet released be brought to open court for a bail hearing by "the second court day" following arrest. The Rule has been amended to be in accord with this statutory provision.

The amended Crim.R. 4 also provides that the "second court day" is the time limit for filing the complaint. This is required by Crim.R. 5, which states that the complaint will be reviewed with the defendant at the defendant's initial appearance before the court. Accord, Crim.R. 10 (arraignment procedure includes the reading of the complaint).