Chapter 1
Jurisdiction and Venue

40-1-101— 40-1-103. [Reserved.]

Where cotton, tobacco, produce or other personal property is sold or pledged in violation of § 39-14-116, the courts in the county where the office or place of business of the person or persons having made advances on the produce or property is situated shall have jurisdiction of the cases arising under § 39-14-116, and of the person violating it.

Acts 1879, ch. 131, § 2; Shan., § 6587; Code 1932, § 10971; modified; T.C.A. (orig. ed.), § 40-111.

Cross-References. Circuit court jurisdiction, § 16-10-102.

Jurisdiction of Mississippi River, §§ 4-1-103, 4-1-104.

Venue, Tenn. R. Crim. P. 18, 21.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.52, 16.53, 26.44.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

The Tennessee Court System — Criminal Court (Frederic S. Le Clerq), 8 Mem. St. U.L. Rev. 319.

40-1-105. False affidavit to obtain parole or pardon.

The venue in case of a violation of § 39-16-703 in making a misstatement of fact in an affidavit used or intended to be used in securing a parole or pardon for any misdemeanant or felon in this state shall be in the county where the affidavit was made, if it was made in any county in Tennessee, and also in the county of this state where the officer or board has its place of business. In case the affidavit is made before some officer outside the limits of this state, then the venue shall be the county in this state where the officer or board with whom the affidavit is filed has its regular place of business.

Acts 1919, ch. 73, § 2; Shan. Supp., § 6700a2; Code 1932, § 11079; modified; T.C.A. (orig. ed.), § 40-113.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 26.44.

40-1-106. Officials defined as magistrates.

The judges of the supreme, appellate, chancery, circuit, general sessions and juvenile courts throughout the state, judicial commissioners and county mayors in those officers' respective counties, and the presiding officer of any municipal or city court within the limit of their respective corporations, are magistrates within the meaning of this title. The judges of chancery and circuit courts have statewide jurisdiction to issue search warrants pursuant to chapter 6, part 1 of this title in any district.

Code 1858, § 4943; Shan., § 6904; Code 1932, § 11428; Acts 1973, ch. 48, § 1; 1978, ch. 933, § 2; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-114; Acts 1993, ch. 115, § 3; 1993, ch. 241, § 55; 2003, ch. 90, § 2; 2019, ch. 486, § 14.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Amendments. The 2019 amendment added the second sentence.

Effective Dates. Acts 2019, ch. 486, § 15. July 1, 2019.

Cross-References. Magistrates defined, §§ 40-5-101, 40-5-102.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.2, 18.81, 18.82.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 19; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, §§ 21, 23.

Attorney General Opinions. Judicial commissioners acting as magistrates, OAG 97-093 (6/26/97).

County judicial commissioners are vested with the authority to make a probable cause determination on a warrantless arrest, OAG 01-038 (3/19/01).

40-1-107. Courts vested with original jurisdiction.

Original jurisdiction of criminal actions is committed to the courts of general sessions, city judges of certain towns and cities, the circuit courts, the criminal courts and the court for the trial of impeachments.

Code 1858, § 4965; Shan., § 6926; Code 1932, § 11466; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-115; Acts 1993, ch. 115, § 4.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Courts, § 19; 17 Tenn. Juris., Jurisdiction, § 22.

Attorney General Opinions. After a finding of “not guilty by reason of insanity” in a trial in general sessions court, the court has jurisdiction to order the 60 to 90 day (now 30 to 60 days) evaluation required by T.C.A. § 33-7-303, but only in misdemeanor cases where the defendant waives in writing an indictment, presentment, grand jury investigation, and jury trial and the district attorney general does not object, OAG 01-041 (3/19/01).

The district attorney general is the only person with authority to prosecute a State of Tennessee criminal offense in a municipal court.  OAG 13-85, 2013 Tenn. AG LEXIS 86 (11/6/13).

NOTES TO DECISIONS

1. Municipal Courts.

While ordinarily the jurisdiction of municipal courts is limited to cases involving violations of municipal ordinances, it may be extended by the legislature to cases arising under state law. Moore v. State, 159 Tenn. 468, 19 S.W.2d 233, 1928 Tenn. LEXIS 109 (1929).

2. Subject Matter Jurisdiction.

Because defendant was found guilty of violating a municipal ordinance, the court of criminal appeals was without subject matter jurisdiction to consider the case, and thus, it had to transfer the case to the court of appeals for further adjudication; a circuit court order found defendant guilty of violating a city ordinance for failure to adhere to a stop sign. City of McMinnville v. Hubbard, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. Feb. 20, 2019).

40-1-108. Original jurisdiction of circuit and criminal courts.

The circuit and criminal courts have original jurisdiction of all criminal matters not exclusively conferred by law on some other tribunal.

Code 1858, § 4967; Shan., § 6928; Code 1932, § 11467; T.C.A. (orig. ed.), § 40-116.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.55, 24.10.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 18;  8 Tenn. Juris., Criminal Procedure, § 20; 17 Tenn. Juris., Jurisdiction, § 22.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Soldiers — Civil War.

Officers and soldiers of the United States army in Tennessee during the Civil War were not subject to the laws or amenable to the tribunals of the hostile country. Coleman v. Tennessee, 97 U.S. 509, 24 L. Ed. 1118, 1878 U.S. LEXIS 1480 (1879).

2. Jurisdiction.

Construed together, T.C.A. §§ 39-13-203 and 40-1-108 limited the chancery court's exercise of subject matter jurisdiction over defendant's declaratory judgment action seeking to enjoin his execution on the ground he met the criteria for intellectual disability because the grant of subject matter jurisdiction to the chancery court had to be express, and there was no such express grant in the intellectual disability statute. Payne v. Carpenter, — S.W.3d —, 2016 Tenn. App. LEXIS 556 (Tenn. Ct. App. Aug. 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 877 (Tenn. Nov. 16, 2016).

Chancery court properly dismissed, for lack of subject-matter jurisdiction, defendant's complaint seeking a declaration that he was ineligible to be sentenced to death because the claims were barred by sovereign immunity where, in the absence of a claim that the intellectual disability statute was unconstitutional, defendant failed to state a claim against the warden and state attorney general in their individual capacity, the determination of whether defendant had an intellectual disability at the time of the offense was a part of the prosecution and sentencing processes, and there was no express grant of subject matter jurisdiction to the chancery court in intellectual disability statute. Sims v. Carpenter, — S.W.3d —, 2016 Tenn. App. LEXIS 560 (Tenn. Ct. App. Aug. 4, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 874 (Tenn. Nov. 16, 2016).

40-1-109. Jurisdiction of general sessions courts.

In addition to the jurisdiction in criminal cases as conferred in §§ 16-15-401 and 16-15-501, the court of general sessions is vested with jurisdiction to try and determine and render final judgment in all misdemeanor cases brought before the court by warrant or information where the person charged with the misdemeanor enters a plea of guilty in writing or requests a trial upon the merits and expressly waives an indictment, presentment, grand jury investigation and jury trial. The waiver shall be in writing as provided in Rule 5 of the Tennessee Rules of Criminal Procedure. In such cases, the trial shall proceed before the court without the intervention of a jury, and the court shall enter judgment, and, as an incident thereto, may inflict punishment within the limits provided by law for the particular offense as the court may determine proper under the peculiar circumstances of the case.

Code 1858, § 4969; Shan., § 6930; mod. Code 1932, § 11469; Acts 1959, ch. 109, § 5; 1967, ch. 360, § 1; 1969, ch. 214, § 1; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), §§ 40-117, 40-118; Acts 1983, ch. 334, § 1; 1993, ch. 241, § 56.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.7, 22.2.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 20; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, §§  21, 22, 39; 25 Tenn. Juris., Weapons, § 7.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

Attorney General Opinions. Transfer upon demand for jury trial in criminal contempt proceeding, OAG 98-048 (2/23/98).

Procedure where failure to appear in municipal court with general sessions jurisdiction charged, OAG 99-096 (4/27/99).

After a finding of “not guilty by reason of insanity” in a trial in general sessions court, the court has jurisdiction to order the 60 to 90 day (now 30 to 60 days) evaluation required by T.C.A. § 33-7-303, but only in misdemeanor cases where the defendant waives in writing an indictment, presentment, grand jury investigation, and jury trial and the district attorney general does not object, OAG 01-041 (3/19/01).

NOTES TO DECISIONS

1. Reducing Charge.

Where a defendant charged with a felony is before the general sessions court for a probable cause hearing, the court does not have jurisdiction to reduce the charge to a misdemeanor and try the defendant, the court is limited to determining whether or not there is probable cause to believe the defendant is guilty of the crime charged, and, if, so, bind him over to the grand jury for appropriate action. Solomon v. State, 529 S.W.2d 743, 1975 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. 1975).

2. Waiver of Constitutional Rights.

In all criminal offenses, the rights to be proceeded against only by indictment or presentment and to a trial by jury are grounded upon provisions of Tenn. Const., art. I, §§ 6 and 14. These constitutional rights may be relinquished only by a valid written waiver. State v. Morgan, 598 S.W.2d 796, 1979 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1979).

The express waivers of a criminal defendant's rights to grand jury review, to indictment or presentment, and to trial by jury confer jurisdiction upon a court to dispose of a defendant's misdemeanor case under T.C.A. § 40-1-109. State v. Tansil, 72 S.W.3d 665, 2001 Tenn. Crim. App. LEXIS 740 (Tenn. Crim. App. 2001).

3. Facially Valid Judgments.

The fact that the general sessions court is not generally considered a court of record does not mean that its facially valid judgments will not be afforded finality for all legitimate purposes until those judgments are reversed or vacated by the proper authority. State v. McClintock, 732 S.W.2d 268, 1987 Tenn. LEXIS 1063 (Tenn. 1987), superseded by statute as stated in, State v. Alonso, — S.W.2d —, 1991 Tenn. Crim. App. LEXIS 784 (Tenn. Crim. App. Sept. 24, 1991).

Decisions Under Prior Law

1. Constitutionality.

Mere fact that all counties did not have general sessions courts did not render Acts 1955, ch. 267 invalid under Tenn. Const., art. I, § 8, as not being the law of the land, or under Tenn. Const., art. XI, § 8, providing against statutes enacted for the benefit of individuals, as such statute was applicable to violations of law within the territorial limits of the county by citizens of all counties brought before such courts and charged with a criminal offense. State v. Simmons, 199 Tenn. 479, 287 S.W.2d 71, 1956 Tenn. LEXIS 346 (1956).

The provisions of Acts 1955, ch. 267 were not violative of the provisions of the constitution providing for trial by jury as contained in Tenn. Const., art. I, § 6, the provisions that no person be put to answer any criminal charge except by presentment, indictment or impeachment contained in Tenn. Const., art. I, § 14, nor of the law of the land provisions contained in Tenn. Const., art. I, § 8. State v. Simmons, 199 Tenn. 479, 287 S.W.2d 71, 1956 Tenn. LEXIS 346 (1956).

2. Waiver of Right to Jury — Extent.

There was no constitutional objection under Tenn. Const., art. I, §§ 6 and 8 to a person waiving his right to a jury trial in a misdemeanor case although under Tenn. Const., art. VI, § 14 he could not by consent confer jurisdiction on any court to levy a fine exceeding $50.00. State v. Simmons, 199 Tenn. 479, 287 S.W.2d 71, 1956 Tenn. LEXIS 346 (1956).

3. Waiver of Presentment, Indictment or Impeachment.

A defendant brought to a trial for a misdemeanor under Acts 1955, ch. 267 could constitutionally waive his right to presentment, indictment or impeachment under Tenn. Const., art. I, § 14. State v. Simmons, 199 Tenn. 479, 287 S.W.2d 71, 1956 Tenn. LEXIS 346 (1956).

40-1-110. Judicial acts of general sessions judges.

The judges of the courts of general sessions and other similar courts created by statute throughout the state are authorized to issue any and all process in connection with criminal cases disposed of by them and to do all other judicial acts necessary to effectuate the judgments rendered by them in such cases.

Acts 1955, ch. 267, § 2; T.C.A., § 40-119.

Cross-References. Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

NOTES TO DECISIONS

1. Facially Valid Judgments.

The fact that the general sessions court is not generally considered a court of record does not mean that its facially valid judgments will not be afforded finality for all legitimate purposes until those judgments are reversed or vacated by the proper authority. State v. McClintock, 732 S.W.2d 268, 1987 Tenn. LEXIS 1063 (Tenn. 1987), superseded by statute as stated in, State v. Alonso, — S.W.2d —, 1991 Tenn. Crim. App. LEXIS 784 (Tenn. Crim. App. Sept. 24, 1991).

40-1-111. Appointment of judicial commissioners or magistrates — Duties — Terms — Compensation — Continuing education.

      1. The chief legislative body of any county having a population of less than two hundred thousand (200,000) or a population of not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census may appoint, and the chief legislative body of any county having a population of over seven hundred thousand (700,000), according to the 1970 federal census or any subsequent federal census, may initially appoint one (1) or more judicial commissioners whose duty or duties shall include, but not be limited to, the following:
        1. Issuance of search warrants and felony arrest warrants upon a finding of probable cause and pursuant to requests from on-duty law enforcement officers and in accordance with the procedures outlined in chapters 5 and 6 of this title;
        2. Issuance of mittimus following compliance with the procedures prescribed by § 40-5-103;
        3. The appointing of attorneys for indigent defendants in accordance with applicable law and guidelines established by the presiding general sessions judge of the county;
        4. The setting and approving of bonds and the release on recognizance of defendants in accordance with applicable law and guidelines established by the presiding general sessions judge of the county; and
        5. Issuance of injunctions and other appropriate orders as designated by the general sessions judges in cases of alleged domestic violence.
        1. This subdivision (a)(1)(B)(i) applies to any county having a population of less than two hundred thousand (200,000) or a population of not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census. The term or terms of the officers shall be established by the chief legislative body of the county to which this subdivision (a)(1)(B)(i) applies but shall not exceed a four-year term. No member of the county legislative body of any county to which this subdivision (a)(1)(B)(i) applies shall be eligible for appointment as a judicial commissioner. Notwithstanding the provisions of this subdivision (a)(1)(B)(i) to the contrary, the presiding general sessions criminal judge of a county to which this subdivision (a)(1)(B)(i) applies may appoint a temporary or part-time judicial commissioner to serve at the pleasure of the presiding judge in case of absence, emergency or other need. The legislative body of any county to which this subdivision (a)(1)(B)(i) applies, in appointing, evaluating and making decisions relative to retention and reappointment, shall take into consideration views, comments and suggestions of the judges of the courts in which the judicial commissioners are appointed to serve.
        2. Any subsequent term of a judicial commissioner initially appointed by the chief legislative body of any county having a population of over seven hundred thousand (700,000), according to the 1970 federal census or any subsequent federal census, shall be by the general sessions judges of that county. The term or terms of the officers shall be established by the general sessions criminal court judges of the county but shall not exceed a four-year term. No member of the county legislative body of the county shall be eligible for appointment as a judicial commissioner. Notwithstanding the provisions of this subdivision (a)(1)(B)(ii) to the contrary, the presiding general sessions criminal court judge of the county may appoint a temporary, or part-time, judicial commissioner to serve at the pleasure of the presiding judge in case of absence, emergency or other need. The general sessions judges of the county in appointing, evaluating and making decisions relative to retention and reappointment shall take into consideration views, comments and suggestions of the judges of the courts in which the judicial commissioners are appointed to serve.
        3. Any subsequent term of a judicial commissioner initially appointed by the chief legislative body of any county having a population of not less than one hundred eighty-three thousand one hundred (183,100) nor more than one hundred eighty-three thousand two hundred (183,200), according to the 2010 federal census or any subsequent federal census, shall be by the general sessions judges of that county. In the event that the general sessions judges are unable to agree on the appointment of a judicial commissioner, the appointment shall be made by the chief legislative body of the county; provided, that any appointment made by the chief legislative body of the county shall not be construed to divest the general sessions judges of the supervisory authority over the judicial commissioner.
      2. In any county having a population greater than seven hundred thousand (700,000), according to the 1970 federal census or any subsequent federal census, to be eligible for appointment and service as a judicial commissioner a person must be licensed to practice law in this state.
        1. Any county, having a population greater than seven hundred thousand (700,000), according to the 1970 federal census or any subsequent federal census, which appoints and makes use of judicial commissioners shall maintain records sufficient to allow an annual determination of whether the use of judicial commissioners is accomplishing the purposes intended.
        2. On an annual basis the county legislative body shall conduct a public hearing to examine and evaluate the program of judicial commissioners and to determine if the program is being conducted in accordance with law and is contributing to the orderly, effective and fair administration of justice. As a part of the public hearing the county legislative body shall examine the effectiveness of the system of judicial commissioners and hear the opinions of the public concerning the system. The county legislative body shall give notice of the public hearing at least thirty (30) days prior to the meeting.
        3. Following the hearing and not later than April 1 of each year, the county legislative body shall cause to be submitted to the judges of the general sessions criminal court of the county, the chair of the judiciary committee of the senate and the chair of the judiciary committee of the house of representatives a written report setting forth findings and the overall evaluation of the use of judicial commissioners.
    1. The judicial commissioner or commissioners shall be compensated from the general fund of the county in an amount to be determined by the chief legislative body. Fees established and authorized by § 8-21-401 shall be paid to the county general fund upon the services detailed in § 8-21-401 being performed by a judicial commissioner.
    1. Notwithstanding any provision of this section to the contrary, a judge of a court of general sessions in a county having a population of not less than fourteen thousand seven hundred (14,700) nor more than fourteen thousand eight hundred (14,800), according to the 1970 federal census or any subsequent federal census, may appoint one (1) or more judicial commissioners whose duties shall be the same as those prescribed for judicial commissioners in subsection (a). The judge may appoint a commissioner if the county legislative body of the counties noted in subsection (a) does not appoint a judicial commissioner before May 1, 1980. The term of the judicial officer shall be for one (1) year or until the county legislative body appoints a judicial commissioner as provided by subsection (a).
    2. A judicial commissioner who is appointed by a general sessions judge as outlined in subdivision (b)(1) shall serve without compensation unless an amount of compensation is specifically established by the county legislative body.
  1. Notwithstanding any provision of this section to the contrary, in any county having a population of not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census, any appointment of a judicial commissioner pursuant to subsection (a) shall be subject to the approval of a majority of the general sessions judges in the county.
    1. Notwithstanding subsections (a)-(c), the legislative body of any county having a population of not less than forty-one thousand four hundred (41,400) nor more than forty-one thousand six hundred (41,600), according to the 1990 federal census or any subsequent federal census, may, by resolution, create the position of one (1) or more judicial commissioners.
    2. The duties of a commissioner shall include, but are not limited to, the following:
      1. The issuance of arrest warrants upon a finding of probable cause;
      2. The setting of bonds and recognizance in accordance with the procedures outlined in chapters 5 and 6 of this title;
      3. The issuance of search warrants where authorized by the general sessions judge or a judge of a court of record; and
      4. The issuance of mittimus following compliance with the procedures prescribed by § 40-5-103.
    3. The term of a judicial commissioner shall be established by the general sessions judge of the county, but in no event shall the term exceed four (4) years.
    4. A judicial commissioner shall be compensated from the general fund of the county in an amount to be determined by the general sessions judge of the county and subject to the approval of the county legislative body. Fees established and authorized by § 8-21-401 shall be paid to the general fund upon the services detailed in § 8-21-401 being performed by a judicial commissioner.
    5. A judicial commissioner shall be selected and appointed by the general sessions judge in the county, and shall serve at the pleasure of such general sessions judge, but not longer than the term specified in subdivision (d)(3).
    1. Notwithstanding subsections (a)-(d), any county having a population of not less than three hundred seven thousand (307,000) nor more than three hundred eight thousand (308,000), according to the 2000 federal census or any subsequent federal census, may elect to establish judicial commissioners to assist the general sessions court in accordance with this subdivision (e)(1). The county legislative body may appoint one (1) or more attorneys to serve as judicial commissioners. The duties of a judicial commissioner shall include, but not be limited to the following:
      1. Issuance of arrest and search warrants upon a finding of probable cause in accordance with the procedures outlined in chapters 5 and 6 of this title;
      2. Issuance of mittimus following compliance with the procedures prescribed by § 40-5-103;
      3. Appointing attorneys for indigent defendants in accordance with applicable law and guidelines established by the presiding general sessions judge of the county;
      4. Setting and approving bonds and the release on recognizance of defendants in accordance with chapter 11 of this title; and
      5. Setting bond for the circuit court judges and chancellors in cases involving violations of orders of protection between the hours of nine o'clock p.m. (9:00 p.m.) and seven o'clock a.m. (7:00 a.m.) on weekdays, and on weekends, holidays and at any other time when the judge or chancellor is unavailable to set bond.
    2. The term of office for a judicial commissioner shall be established by the county legislative body, but such term shall not exceed four (4) years. A member of the county legislative body is not eligible for appointment as a judicial commissioner.
    3. A judicial commissioner shall be compensated from the general fund of the county in an amount to be determined by the county legislative body. Fees established and authorized by § 8-21-401 shall be paid to the county general fund upon the services detailed therein being performed by a judicial commissioner.
    1. Beginning January 1, 2010, each judicial commissioner who is appointed to serve pursuant to this section must complete twelve (12) hours of continuing education each calendar year, ten (10) hours of which must be completed by attendance at conferences or courses sponsored or approved by the Judicial Commissioners Association of Tennessee. The remaining two (2) hours may be completed by attendance at classes sponsored by either the Judicial Commissioners Association of Tennessee or the Tennessee Court Clerks Association, or by local in-service education. At least six (6) hours of the total twelve (12) hours must be taught by a person who is licensed to practice law in this state.
    2. Any judicial commissioner who is licensed to practice law in this state is authorized to use continuing legal education credits toward completion of the ten (10) hours, which otherwise must be completed by attendance at conferences or courses sponsored or approved by the Judicial Commissioners Association of Tennessee.
    3. All judicial commissioners must complete, as part of the twelve (12) required hours, the following classes:
      1. At least two (2) hours concerning domestic violence or child abuse;
      2. At least one (1) hour concerning bail and bonds; and
      3. At least one (1) hour concerning ethics.
    4. All counties for which judicial commissioners are appointed to serve pursuant to this section shall provide all necessary funding for their respective judicial commissioners to complete the continuing education required by this subsection (f).
    5. All records indicating satisfaction of the continuing education requirements for judicial commissioners shall be maintained by each county and kept on the file for at least seven (7) years.
    6. Notwithstanding this subsection (f), in any county in which the judicial commissioner is selected by the general sessions judge or judges, the county legislative body of such county may elect, by a two-thirds (2/3) majority, to allow each judicial commissioner to receive twelve (12) hours of appropriate continuing education each calendar year under the supervision of the appointing general sessions judge or judges rather than the Judicial Commissioners Association of Tennessee or the Tennessee Court Clerks Association. Further, in any county that has previously made this election, that county may later rescind that action by a subsequent two-thirds (2/3) majority vote of its county legislative body as to allow the judicial commissioners to receive the required training through the Judicial Commissioners Association of Tennessee or the Tennessee Court Clerks Association.
    7. Subject to appropriation, funds from the judicial commissioner continuing education account, created in § 67-4-602(k), shall be used by the Judicial Commissioners Association of Tennessee for the development and presentation of continuing education programs, courses and conferences for judicial commissioners in this state.
  2. Judicial commissioners duly appointed pursuant to this section in any county with a population not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census, shall be known as “magistrates.”
    1. In any county having a population of not less than four hundred thirty-two thousand two hundred (432,200) nor more than four hundred thirty-two thousand three hundred (432,300), according to the 2010 federal census or any subsequent federal census, there is created the position of domestic abuse magistrate.
    2. Notwithstanding any other law to the contrary, the domestic abuse magistrate created by this subsection (h) shall be appointed by the judge of the fourth circuit court of any such county and shall hold office for a term of eight (8) years from the date of appointment. The magistrate shall be eligible for reappointment to successive eight-year terms and shall be compensated from the general fund of the county in an amount to be determined by the county legislative body. Upon making a selection, the judge shall reduce the appointment to writing and file it with the fourth circuit court clerk of any county to which this subsection (h) applies. The domestic abuse magistrate, once appointed, shall regularly perform the duties set out in this subsection (h) within the approximate time period that the fourth circuit court begins and ends its daily docket, and the magistrate shall be styled as magistrate judge.
    3. To qualify for the position of domestic abuse magistrate, the applicant must:
      1. Be at least thirty (30) years of age;
      2. Be a resident of the county funding the position;
      3. Be an attorney, licensed to practice law in the courts of this state; and
      4. Have served as a judicial commissioner or magistrate pursuant to subsection (a) for at least a full four-year term prior to application.
    4. No person who is a judicial commissioner under subsection (a) or a magistrate under subsection (g) prior to the appointment of the domestic abuse magistrate may simultaneously hold that position and the position of domestic abuse magistrate under this subsection (h).
    5. For purposes of:
      1. Title 36, chapter 3, part 6, the domestic abuse magistrate shall be considered a “court” as defined in § 36-3-601(3)(A) and (D), and shall have all jurisdiction and authority necessary to serve in that function for the employing county; and
      2. Chapter 5, part 1 of this title, the domestic abuse magistrate shall be considered a “magistrate” as defined in § 40-5-102, and shall have all of the jurisdiction and authority necessary to serve in that function for the employing county, and the domestic abuse magistrate shall complete the judicial continuing education requirements of subsection (f) in the same manner as a judicial commissioner.
    6. The domestic abuse magistrate shall have, regardless of whether the case involves alleged domestic abuse, the following duties pursuant to this chapter, the Tennessee Rules of Civil Procedure, the Tennessee Rules of Criminal Procedure, and applicable statutes:
      1. Those conferred upon a court by title 36, chapter 3, part 6;
      2. Issuing or denying temporary or ex-parte orders of protection;
      3. Setting and approving bond in cases of civil and criminal contempt for alleged violations of orders of protection;
      4. Issuing injunctions and other appropriate orders in cases of alleged domestic violence;
      5. Setting and approving of bonds and release on recognizance of defendants in accordance with applicable law;
      6. Issuing mittimus in compliance with § 40-5-103;
      7. Issuing criminal arrest warrants, criminal summons, and search warrants upon a finding of probable cause;
      8. Appointing attorneys for indigent defendants and respondents in accordance with applicable law;
      9. Conducting initial appearances in accordance with Rule 5 of the Tennessee Rules of Criminal Procedure;
      10. Setting and approving bond for probation violation warrants;
      11. Issuing attachments, capias, or conditional bond forfeitures;
      12. Conducting compliance review dockets to examine and report to the appropriate judge any findings and conclusions regarding compliance with court orders;
      13. Conducting initial appearances for any defendant following arrest for a crime involving domestic abuse when conducted pursuant to the requirements imposed by § 36-3-602(c) [repealed]; and
      14. Any other judicial duty not prohibited by the constitution, statute, or applicable rules, when requested by a judge.
    7. If the domestic abuse magistrate is carrying out one (1) of the duties of the office under this subsection (h), the failure to appear before the magistrate constitutes failure to appear and shall subject the defendant or respondent to arrest and forfeiture of bond.
    8. If the appointed domestic abuse magistrate is absent or unavailable for any reason, the magistrate has the authority to appoint special, substitute, or temporary magistrates to carry out the duties of this section. A substitute magistrate shall be an attorney, licensed to practice law in the courts of this state, a resident of the county of the appointing domestic abuse magistrate, and not less than thirty (30) years of age. An order of appointment for a special, substitute, or temporary magistrate shall be for a fixed period of time and shall be reduced to writing and filed with the fourth circuit court clerk.
    9. The domestic abuse magistrate may also accept appointment by the judge of the fourth circuit court to serve as a special master to the fourth circuit court for any purpose established by the judge. The appointment may be made by the judge at the same time as the appointment to the position of domestic abuse magistrate, or at any time during the magistrate's term.

Acts 1978, ch. 933, § 4; 1979, ch. 15, § 1; 1980, ch. 781, § 1; 1981, ch. 209, §§ 1, 2; T.C.A., § 40-120; Acts 1991, ch. 444, § 1; 1993, ch. 241, § 57; 1998, ch. 984, § 1; 2001, ch. 316, §§ 1, 2; 2004, ch. 685, § 1; 2009, ch. 503, § 1; 2010, ch. 989, §§ 1, 2; 2012, ch. 890, § 1; 2012, ch. 1052, §§ 1, 3; 2013, ch. 236, § 33; 2016, ch. 531, §§ 2, 3; 2017, ch. 222, § 1; 2019, ch. 345, § 55.

Code Commission Notes.

Former subdivisions (a)(1)(D), (a)(2)(A), (a)(2)(B), and (a)(3) were redesignated by the code commission as subdivisions (a)(1)(D)(i), (a)(1)(D)(ii), (a)(1)(D)(iii), and (a)(2), respectively, in 2011.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

§ 36-3-602(c ), which is referred to in subsection (h) of this section, was repealed by Acts 2018, ch. 586, § 1.

Amendments. The 2019 amendment substituted “judiciary” for “criminal justice” preceding “committee of the house” in (a)(1)(D)(iii).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Judicial commissioners, metropolitan government, title 40, ch. 5, part 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.2, 18.81.

Attorney General Opinions. A judicial commissioner appointed by a county commission can be removed from office by ouster for knowing or willful misconduct in office, knowing or willful neglect of duty, public intoxication, gambling, or any act constituting a violation of a penal statute involving moral turpitude, OAG 00-126 (8/7/00).

A judicial commissioner may perform the functions of that office for a city court when that court exercises its concurrent general sessions jurisdiction over criminal cases, but the city is not authorized to provide additional compensation to the judicial commissioners for performing this function, OAG 00-126 (8/7/00).

A judge may exercise supervisory authority over judicial commissioners who perform functions for the judge's court where such supervision is reasonably necessary to maintain order within that judge's court and to promote the administration of justice, but that authority does not include the authority to remove a judicial commissioner from office, OAG 00-126 (8/7/00).

A judicial commissioner can be removed from office only by an ouster action governed by T.C.A. § 8-47-101 et seq., OAG 00-126 (8/7/00).

The method used to appoint and retain judicial commissioners in Shelby County is constitutional, OAG 01-081 (5/17/01).

Judicial commissioners in Shelby County may issue search warrants or arrest warrants in cases where the defendant is being charged with a Class A or Class B felony, OAG 01-081 (5/17/01).

A constable with law enforcement powers is not a “neutral and detached” magistrate qualified to issue criminal arrest and search warrants, therefore, serving as constable, directly interferes with an individual's ability to carry out the duties of the office of judicial commissioner, OAG 02-109 (10/02/02).

Where a judicial commissioner performs his or her official duties on behalf of a city court with concurrent general sessions jurisdiction, he or she is not required to be a resident of that city, absent some private act to the contrary, OAG 03-110 (9/8/03).

Salary raise for Hamilton County judicial commissioners, OAG 03-150 (11/17/03).

A part-time judicial commissioner serving the Shelby County General Sessions Criminal Court may not practice law in the same court, OAG 03-155 (12/01/03).

Judicial commissioners in Hamilton County may set bonds for the appearance of individuals who are arrested and charged with state law or municipal ordinance violations, OAG 07-102 (7/10/07).

No statute prohibits a person whose close relative is a law enforcement officer in the same county from serving as a judicial commissioner; however, a judicial commissioner should recuse himself or herself when presented with a request for a search warrant by the commissioner's relative or in connection with an investigation in which the relative is an investigating officer, OAG 07-123 (8/16/07).

NOTES TO DECISIONS

1. In General.

This section creates neither an inferior court nor a corporation court, but a magistrate, to which office the requirements of Tenn. Const., art. VI, § 4 are not applicable. State v. Bush, 626 S.W.2d 470, 1981 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. 1981).

2. Constitutionality.

This section is constitutional. State v. Bush, 626 S.W.2d 470, 1981 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. 1981).

It was not necessary to determine the constitutionality of T.C.A. § 40-1-111 because the good faith exception to the exclusionary rule applied where the officer objectively and reasonably believed the judicial commissioner had the authority to issue a warrant and the officer engaged in no misconduct; in addition, the deterrent purpose of the exclusionary rule would not be advanced by punishing the officer for reasonably relying on the authority of the commissioner to issue a search warrant. United States v. Pennington, 115 F. Supp. 2d 910, 2000 U.S. Dist. LEXIS 14862 (W.D. Tenn. 2000).

Judicial commissioner appointed by a legislative body of a county who is not a judge or even an attorney may lawfully issue a search warrant or act as a neutral magistrate for purposes of the fourth amendment. United States v. Pennington, 2003 U.S. App. LEXIS 5832, 2003 FED App. 92P (6th Cir. Tenn. 2003).

3. Duties.

A judicial commissioner's duties under this section are characteristic of a magistrate's and not a court's. State v. Bush, 626 S.W.2d 470, 1981 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. 1981).

Defendant's constitutional challenge to the authority of a county judicial commissioner to issue a valid search warrant under T.C.A. § 40-1-111(a)(1)(A) was without merit because the record was insufficient to draw any conclusions as to the lack of the commissioner's neutrality. Even though an officer testified that the commissioner had never rejected a warrant sought, there was no evidence of how many warrants the officer had sought and it was just as logical to conclude that the officer presented affidavits in support of those warrants justifying their issuance. United States v. Pennington, 324 F.3d 438, 2003 FED App. 129A, 2003 U.S. App. LEXIS 8373 (6th Cir. Tenn. 2003)

4. —Jurisdiction.

Appointing someone to be a judicial commissioner, in order to issue warrants in a particular town, did not restrict the commissioner's activity to that town, absent evidence of contrary intent. State v. Bush, 626 S.W.2d 470, 1981 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. 1981).

40-1-104. Fraudulent sale of pledged property.

Chapter 2
Limitation of Prosecutions

40-2-101. Felonies.

  1. A person may be prosecuted, tried and punished for an offense punishable with death or by imprisonment in the penitentiary during life, at any time after the offense is committed.
  2. Prosecution for a felony offense shall begin within:
    1. Fifteen (15) years for a Class A felony;
    2. Eight (8) years for a Class B felony;
    3. Four (4) years for a Class C or Class D felony; and
    4. Two (2) years for a Class E felony.
  3. Notwithstanding subsections (a) and (b), offenses arising under the revenue laws of the state shall be commenced within the three (3) years following the commission of the offense, except that the period of limitation of prosecution shall be six (6) years in the following instances:
    1. Offenses involving the defrauding or attempting to defraud the state of Tennessee or any agency of the state, whether by conspiracy or not, and in any manner;
    2. The offense of willfully attempting in any manner to evade or defeat any tax or the payment of a tax;
    3. The offense of willfully aiding or abetting, or procuring, counseling or advising, the preparation or presentation under, or in connection with, any matter arising under the revenue laws of the state, or a false or fraudulent return, affidavit, claim or document, whether or not the falsity or fraud is with the knowledge or consent of the person authorized or required to present the return, affidavit, claim or document; and
    4. The offense of willfully failing to pay any tax, or make any return at the time or times required by law or regulation.
  4. Notwithstanding the provisions of subdivision (b)(3) to the contrary, prosecution for the offense of arson as prohibited by § 39-14-301 shall commence within eight (8) years from the date the offense occurs.
  5. Prosecutions for any offense committed against a child prior to July 1, 1997, that constitutes a criminal offense under § 39-2-601 [repealed], § 39-2-603  [repealed], § 39-2-604 [repealed], § 39-2-606 [repealed], § 39-2-607 [repealed], § 39-2-608 [repealed], § 39-2-612 [repealed], § 39-4-306 [repealed], § 39-4-307 [repealed], § 39-6-1137 [repealed], or § 39-6-1138 [repealed], or under §§ 39-13-502 — 39-13-505, § 39-15-302 or § 39-17-902 shall commence no later than the date the child attains the age of majority or within four (4) years after the commission of the offense, whichever occurs later; provided, that pursuant to subsection (a), an offense punishable by life imprisonment may be prosecuted at any time after the offense has been committed.
  6. For offenses committed prior to November 1, 1989, the limitation of prosecution in effect at that time shall govern.
    1. Prosecutions for any offense committed against a child on or after July 1, 1997, that constitutes a criminal offense under § 39-17-902 shall commence no later than the date the child reaches twenty-one (21) years of age; provided, that if subsection (a) or (b) provides a longer period of time within which prosecution may be brought than this subsection (g), the applicable provision of subsection (a) or (b) shall prevail.
    2. Prosecutions for any offense committed against a child on or after July 1, 1997, but prior to June 20, 2006, that constitutes a criminal offense under §§ 39-13-502 — 39-13-505, § 39-13-522 or § 39-15-302 shall commence no later than the date the child reaches twenty-one (21) years of age; provided, that if subsection (a) or (b) provides a longer period of time within which prosecution may be brought than this subsection (g), the applicable provision of subsection (a) or (b) shall prevail.
    1. A person may be prosecuted, tried and punished for any offense committed against a child on or after June 20, 2006, that constitutes a criminal offense under § 39-13-504, § 39-13-505, § 39-13-527 or § 39-15-302, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
    2. A person may be prosecuted, tried and punished for any offense committed against a child on or after June 20, 2006, that constitutes a criminal offense under § 39-13-502, § 39-13-503 or § 39-13-522 no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
    1. A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2007, that constitutes a criminal offense under § 39-13-532, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
    2. A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2007, that constitutes a criminal offense under § 39-13-531, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
  7. A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2012, that constitutes a criminal offense under § 39-17-902, § 39-17-1003, § 39-17-1004, or § 39-17-1005, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
    1. A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2013, that constitutes a criminal offense under § 39-13-309 or § 39-13-529, no later than fifteen (15) years from the date the child becomes eighteen (18) years of age.
    2. A person may be prosecuted, tried, and punished for any offense committed against a child on or after July 1, 2013, that constitutes a criminal offense under § 39-13-514 no later than ten (10) years from the date the child becomes eighteen (18) years of age.
      1. A person may be prosecuted, tried, and punished for any offense committed against a child on or after July 1, 2013, but prior to July 1, 2015, that constitutes a criminal offense under § 39-13-515 no later than ten (10) years from the date the child becomes eighteen (18) years of age.
      2. A person may be prosecuted, tried, and punished for any offense committed against a child on or after July 1, 2015, that constitutes a criminal offense under § 39-13-515 no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
    1. Notwithstanding subsections (b), (g), (h), and (i) to the contrary, a person may be prosecuted, tried, and punished at any time after the commission of an offense if:
      1. The offense was one (1) of the following:
        1. Aggravated rape, as prohibited by § 39-13-502; or
        2. Rape, as prohibited by § 39-13-503;
      2. The victim was an adult at the time of the offense;
      3. The victim notifies law enforcement or the office of the district attorney general of the offense within three (3) years of the offense; and
      4. The offense is committed:
        1. On or after July 1, 2014; or
        2. Prior to July 1, 2014, unless prosecution for the offense is barred because the applicable time limitation set out in this section for prosecution of the offense expired prior to July 1, 2014.
    2. If subdivision (l )(1) does not apply to the specified offenses, prosecution shall be commenced within the times otherwise provided by this section.
  8. A person may be prosecuted, tried, and punished for any offense committed against a child on or after July 1, 2016, that constitutes the offense of aggravated statutory rape under § 39-13-506(c), no later than fifteen (15) years from the date the child becomes eighteen (18) years of age.
  9. Notwithstanding subsection (b), prosecutions for any offense committed on or after July 1, 2016, that constitutes the offense of aggravated child abuse, or aggravated child neglect or endangerment, under § 39-15-402, shall commence by the later of:
    1. Ten (10) years after the child reaches eighteen (18) years of age; or
    2. The time within which prosecution must be commenced pursuant to subsection (b).
  10. A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2019, that constitutes the offense of female genital mutilation, under § 39-13-110, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
  11. Notwithstanding subsection (b), a person may be prosecuted, tried, and punished for second degree murder, as prohibited by § 39-13-210, that is committed on or after July 1, 2019, at any time after the offense is committed.
    1. Notwithstanding subsections (b), (g), (h), (i), (j), (k), or (m), prosecution for the following offenses, when committed against a minor under eighteen (18) years of age shall commence as provided by this subsection (q):
      1. Trafficking for a commercial sex act, as prohibited by § 39-13-309;
      2. Aggravated rape, as prohibited by § 39-13-502;
      3. Rape, as prohibited by § 39-13-503;
      4. Aggravated sexual battery, as prohibited by § 39-13-504;
      5. Sexual battery, as prohibited by § 39-13-505;
      6. Mitigated statutory rape, as prohibited by § 39-13-506;
      7. Statutory rape, as prohibited by § 39-13-506;
      8. Aggravated statutory rape, as prohibited by § 39-13-506(c);
      9. Indecent exposure, as prohibited by § 39-13-511, when the offense is classified as a felony offense;
      10. Patronizing prostitution, as prohibited by § 39-13-514;
      11. Promotion of prostitution, as prohibited by § 39-13-515;
      12. Continuous sexual abuse of a child, as prohibited by § 39-13-518;
      13. Rape of a child, as prohibited by § 39-13-522;
      14. Sexual battery by an authority figure, as prohibited by § 39-13-527;
      15. Solicitation of a minor, as prohibited by § 39-13-528, when the offense is classified as a felony offense;
      16. Soliciting sexual exploitation of a minor - exploitation of a minor by electronic means, as prohibited by § 39-13-529;
      17. Aggravated rape of a child, as prohibited by § 39-13-531;
      18. Statutory rape by an authority figure, as prohibited by § 39-13-532;
      19. Unlawful photographing, as prohibited by § 39-13-605, when the offense is classified as a felony offense;
      20. Observation without consent, as prohibited by § 39-13-607, when the offense is classified as a felony offense;
      21. Incest, as prohibited by § 39-15-302;
      22. Sexual exploitation of a minor, as prohibited by § 39-17-1003;
      23. Aggravated sexual exploitation of a minor, as prohibited by § 39-17-1004; or
      24. Especially aggravated sexual exploitation of a minor, as prohibited by § 39-17-1005.
    2. A person may be prosecuted, tried, and punished for an offense listed in subdivision (q)(1) at any time after the commission of an offense if:
      1. The victim was under thirteen (13) years of age at the time of the offense; or
        1. The victim was at least thirteen (13) years of age but no more than seventeen (17) years of age at the time of the offense; and
        2. The victim reported the offense to another person prior to the victim attaining twenty-three (23) years of age.
      1. Except as provided in subdivision (q)(3)(B), a person may be prosecuted, tried, and punished for an offense listed in subdivision (q)(1) at any time after the commission of an offense if:
        1. The victim was at least thirteen (13) years of age but no more than seventeen (17) years of age at the time of the offense; and
        2. The victim did not meet the reporting requirements of subdivision (q)(2)(B)(ii).
      2. In order to commence prosecution for an offense listed in subdivision (q)(1) under the circumstances described in subdivision (q)(3)(A), at a date that is more than twenty-five (25) years from the date the victim becomes eighteen (18) years of age, the prosecution is required to offer admissible and credible evidence corroborating the allegations or similar acts by the defendant.
    3. This subsection (q) applies to offenses:
      1. Committed on or after July 1, 2019; or
      2. Committed prior to July 1, 2019, unless prosecution for the offense is barred because the applicable time limitation set out in this section for prosecution of the offense expired prior to July 1, 2019.

Code 1932, §§ 11481-11483; Acts 1977, ch. 62, § 1; T.C.A. (orig. ed.), §§ 40-201 — 40-203; Acts 1985, ch. 478, § 21; 1990, ch. 980, § 17; 1997, ch. 214, §§ 1, 2; 1998, ch. 962, § 1; 2006, ch. 927, § 1; 2007, ch. 594, § 5; 2012, ch. 1027, § 1; 2013, ch. 416, § 1; 2014, ch. 836, §§ 1, 2; 2015, ch. 310, § 1; 2016, ch. 958, § 1; 2016, ch. 1032, § 1; 2019, ch. 268, § 4; 2019, ch. 410, § 1; 2019, ch. 499, §§ 5-8.

Compiler's Notes. Sections under title 39, chs. 2, 4 and 6, referred to in this section, were repealed by Acts 1989, ch. 591, effective November 1, 1989.

For the Preamble to the act regarding criminal penalties, procedure and sentencing, please refer to Acts 2007, ch. 594.

Pursuant to Article III, Section 18 of the Constitution of Tennessee, Acts 2014, ch. 836 took effect on April 28, 2014.

Acts 2019, ch. 410, § 2 provided that the act, which added subsection (p), applies to acts occurring on or after July 1, 2019.

Amendments. The 2019 amendment by ch. 268 added (o).

The 2019 amendment by ch. 410 added (p).

The 2019 amendment by ch. 499 deleted “but prior to July 1, 2014” following “June 20, 2006” in (h)(2) and following “July 1, 2007” (i)(2); rewrote (l )(1) which read, “(1) Notwithstanding subsections (b), (g), (h) and (i) to the contrary, a person may be prosecuted, tried and punished for an act that constitutes the offense of aggravated rape, as prohibited by § 39-13-502, rape, as prohibited by § 39-13-503, rape of a child as prohibited by § 39-13-522 or aggravated rape of a child as prohibited by § 39-13-531 at any time after the commission of the offense if: “(A) The victim notifies law enforcement or the office of the district attorney general of the offense within three (3) years of the offense; and “(B) The offense is committed: “(i) On or after July 1, 2014; or “(ii) Prior to July 1, 2014, unless prosecution for the offense is barred because the applicable time limitation set out in this section for prosecution of the offense expired prior to July 1, 2014.”; and added (q).

Effective Dates. Acts 2019, ch. 268, § 5. July 1, 2019.

Acts 2019, ch. 410, § 2. July 1, 2019.

Acts 2019, ch. 499, § 10. July 1, 2019.

Cross-References. Penalties for Class A, B, C, D, and E felonies, § 40-35-111.

Transfer from juvenile court, sentence of death prohibited, § 37-1-134.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.82.

Tennessee Jurisprudence, 18 Tenn. Juris., Limitations of Actions, § 18.

Law Reviews.

Defending Life in Tennessee Death Penalty Cases (Roy B. Herron), 51 Tenn. L. Rev. 681 (1984).

Attorney General Opinions. Statute of limitations of aggravated gambling promotion, OAG 99-127 (6/29/99).

A prosecution for the sale of beer to minors must commence within 12 months if a Class A misdemeanor and within two years if a Class E felony, OAG 01-062 (4/20/01).

NOTES TO DECISIONS

1. Construction.

The applicable punishment for determining the appropriate statute of limitations is the maximum punishment available for an offense. State v. Ricci, 914 S.W.2d 475, 1996 Tenn. LEXIS 63 (Tenn. 1996).

Application of the pre-1989 statute of limitations and prosecution of defendants for securities law violations committed in 1988 did not violate constitutional ex post facto provisions or due process since the applicable limitations were not changed by the 1990 amendment which established limitation periods consistent with the Criminal Sentencing Reform Act of 1989, § 40-35-101 et seq. State v. Ricci, 914 S.W.2d 475, 1996 Tenn. LEXIS 63 (Tenn. 1996).

2. Pleading Limitations.

The failure on the part of trial counsel to raise the statute of limitations on behalf of the defendant represented a deficiency in performance of a constitutional nature; and because prejudice resulted, the defendant's post-conviction motion based upon a claim of ineffective assistance of counsel was granted. Morgan v. State, 847 S.W.2d 538, 1992 Tenn. Crim. App. LEXIS 731 (Tenn. Crim. App. 1992).

3. Allegations of Indictment.

Where an indictment or presentment shows upon its face, or by stipulation, that the applicable statute of limitations has expired, the instrument must allege facts which demonstrate that the statute was tolled for a sufficient period of time to avoid the bar of the statute of limitations. State v. Davidson, 816 S.W.2d 316, 1991 Tenn. LEXIS 320 (Tenn. 1991), rehearing denied, 1991 Tenn. LEXIS 424 .

Where there is a statute of limitations that bars prosecution of the offenses charged, there should be a sufficiently definite averment of time in the indictment to show that the offense was committed within the statute of limitations. State v. Kennedy, 10 S.W.3d 280, 1999 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1999).

It was no error to let the State amend an indictment to allege a new ground for tolling the statute of limitations applicable to second-degree murder because (1) defendant consented to the amendment, and, (2) if defendant did not consent, jeopardy had not attached, no new crime was charged, and defendant's substantial right was not prejudiced, as the State could have obtained a superseding indictment. State v. Hollingsworth, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. Jan. 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 352 (Tenn. May 24, 2017).

4. Return of Indictment.

Because an amendment of the date did not charge an additional crime, the court looked to the date the indictment was returned in order to determine whether the amended date fell within the statute of limitations. State v. Kennedy, 10 S.W.3d 280, 1999 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1999).

5. Concealment of Crime.

If coercion against a minor victim of sexual abuse could amount to concealment of the crime so as to toll the running of the statute of limitations, the time frame for the coercion constituting the concealment would need to be alleged. State v. Davidson, 816 S.W.2d 316, 1991 Tenn. LEXIS 320 (Tenn. 1991), rehearing denied, 1991 Tenn. LEXIS 424 .

If the tolling is triggered by concealment, the statute would begin to run when the concealment ceased. State v. Davidson, 816 S.W.2d 316, 1991 Tenn. LEXIS 320 (Tenn. 1991), rehearing denied, 1991 Tenn. LEXIS 424 .

6. Prosecution Untimely.

Institution of incest charges was not timely. State v. Henry, 834 S.W.2d 273, 1992 Tenn. LEXIS 361 (Tenn. 1992).

Defendant's 1988 indictments on three counts of aggravated rape, aggravated sexual battery, and use of a minor for obscene purposes all occurred more than four years after the offenses; as there was no evidence of concealment, including threats to the victims on the part of defendant, the proof was inadequate to support a tolling of the statutes of limitation, depriving the trial court of subject-matter jurisdiction. Morgan v. State, 847 S.W.2d 538, 1992 Tenn. Crim. App. LEXIS 731 (Tenn. Crim. App. 1992).

A conviction for a time-barred crime clearly violates the constitutional rights of an accused. Morgan v. State, 847 S.W.2d 538, 1992 Tenn. Crim. App. LEXIS 731 (Tenn. Crim. App. 1992).

7. Waiver of Defense.

Although the statute of limitations is waivable, rather than jurisidictional, a waiver by the defendant must be knowingly and voluntarily entered. While the protection against prosecution provided by a statute of limitations may not rise to the level of a fundamental right, the right is sufficiently substantial to justify application of the same standard used in determining whether there has been an effective waiver as to fundamental rights. State v. Pearson, 858 S.W.2d 879, 1993 Tenn. LEXIS 240 (Tenn. 1993).

8. Competence of Counsel.

Defense counsel's failure to object to the jury instructions regarding the law of aggravated rape did not constitute ineffective assistance of counsel; at the time defendant committed the offense (August 1978 — May 1979), the offense of aggravated rape did not exist, and this instruction was an accurate statement of the law as it existed at the time the indictment was returned. Overton v. State, 874 S.W.2d 6, 1994 Tenn. LEXIS 94 (Tenn. 1994).

9. Purpose.

The statute of limitations serves two primary purposes: to avoid the use of stale evidence and to provide an incentive for swift governmental action in criminal cases. State v. Pearson, 858 S.W.2d 879, 1993 Tenn. LEXIS 240 (Tenn. 1993).

10. Statute of Limitations.

Defendant's prosecution for sexual battery, in violation of T.C.A. §§ 39-13-504, 39-13-505, was commenced within the applicable statute of limitations under T.C.A. § 40-2-101(g) where the state established by a preponderance of the evidence, as required under T.C.A. § 39-11-201(f), that the victim was a minor at the time of the offense and that the prosecution was commenced before she turned 21. State v. Doane, 393 S.W.3d 721, 2011 Tenn. Crim. App. LEXIS 503 (Tenn. Crim. App. July 6, 2011), overruled in part, State v. Turner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. May 5, 2017).

Defendant's conviction for attempted aggravated rape was not barred by the statute of limitations, T.C.A. § 40-2-101(b)(1)-(2), because the John Doe arrest warrant and DNA profile commenced the prosecution against defendant in a timely fashion and tolled the statute of limitations until he was identified and apprehended; a John Doe warrant coupled with a DNA profile of an unknown suspected offender obtained before the expiration of the applicable statute of limitations may validly commence a criminal prosecution and toll the statute of limitations. State v. Burdick, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 886 (Tenn. Crim. App. Dec. 2, 2011), aff'd, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

Prosecution for attempted aggravated rape was properly and timely commenced with in the eight-year statute of limitations for attempted aggravated rape, T.C.A. § 40-2-101(b)(1)-(2), by the filing of the “John Doe” arrest warrant because The “John Doe” designation in the warrant, coupled with the detailed DNA profile of the assailant, identified defendant with “reasonable certainty” as required by the Fourth Amendment, Tenn. Const. art. I, § 7, T.C.A. § 40-6-208, and Tenn. R. Crim. P. 4(c)(1)(B). State v. Burdick, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

Trial court erred in dismissing defendant's re-indictment for rape of a child and aggravated sexual battery based on a violation of defendant's due process and speedy trial rights, because defendant's constitutional right to a speedy trial was not implicated, the prosecution commenced within the applicable statutory periods, the length of the delay, between 7 and 12 years, was not excessive, the bulk of the delay was attributable to the victim's reluctance to come forward and changing memory, factors not within the control of either the State or defendant, and defendant's inability to call certain witnesses due to death or failure to locate did not demonstrate actual prejudice. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 606 (Tenn. Crim. App. Aug. 16, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 937 (Tenn. Dec. 15, 2016).

40-2-102. Misdemeanors.

  1. Except as provided in § 62-18-120(g) and subsection (b) of this section, all prosecutions for misdemeanors shall be commenced within the twelve (12) months after the offense has been committed, except gaming, which shall be commenced within six (6) months.
  2. Prosecutions under § 39-16-301 for criminal impersonation accomplished through the use of a fraudulently obtained driver license shall be commenced within one (1) year of the date the driver license expires or within three (3) years of the date the nonexpired driver license was last used to falsely impersonate the person in whose name the driver license was issued, whichever is longer.

Code 1858, § 4983 (deriv. Acts 1831, ch. 82); Shan., § 6942; mod. Code 1932, § 11484; T.C.A. (orig. ed.), § 40-204; Acts 1985, ch. 146, § 1; 1999, ch. 374, § 1.

Cross-References. Penalties for land surveyor violations, § 62-18-120.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.82.

Tennessee Jurisprudence, 13 Tenn. Juris., Gaming, Gambling and Gambling Contracts, §§ 9, 10; 18 Tenn. Juris., Limitations of Actions, § 18.

Attorney General Opinions. “Gambling device” construed to include gambling software, OAG 98-0173 (8/28/98).

Gaming includes gambling and activities involving gambling, OAG 99-127 (6/29/99).

Statute of limitations for gambling promotion, OAG 99-127 (6/29/99).

A prosecution for the sale of beer to minors must commence within 12 months if a Class A misdemeanor and within two years if a Class E felony, OAG 01-062 (4/20/01).

Retired misdemeanor cases.  OAG 11-4, 2011 Tenn. AG LEXIS 4 (1/7/11).

NOTES TO DECISIONS

1. Indictment.

2. —Sufficiency.

An indictment for a misdemeanor will be quashed where the prosecution is not commenced within 12 months, or within the time prescribed for commencing a prosecution for the particular offense, after the commission of the offense. State v. House, 2 Shan. 610 (1877).

Indictment should aver time of offense within the statutory limitation, and if it does not appear that the offense was committed within that time, a motion to quash the indictment will be sustained. State v. Shaw, 113 Tenn. 536, 82 S.W. 480, 1904 Tenn. LEXIS 47 (1904).

Where the indictment is brought after the period of limitations has expired, it must be pleaded and proved that certain specific facts toll the statute. State v. Comstock, 205 Tenn. 389, 326 S.W.2d 669, 1959 Tenn. LEXIS 377 (1959).

An indictment issued beyond the statutory limitation period need not allege commencing facts to establish that the prosecution was timely initiated within the applicable limitations period by another method. State v. Messamore, 937 S.W.2d 916, 1996 Tenn. LEXIS 728 (Tenn. 1996).

A superseding indictment issued after the statute of limitations has elapsed need not allege facts showing that the prosecution was timely commenced with a prior presentment or indictment. State v. Nielsen, 44 S.W.3d 496, 2001 Tenn. LEXIS 383 (Tenn. 2001).

Where defendant was arrested on a warrant for D.U.I. and more than one year later was charged by indictment for driving while under the influence of an intoxicant in violation of T.C.A. § 55-10-401(a)(1) (now 55-10-401(1)) and for driving with an alcohol concentration of .10 percent or more in violation of T.C.A. § 55-10-401(a)(2) (now 55-10-401(2)), the latter charge was not untimely filed because it could have been inferred from the warrant charge for D.U.I. State v. Tait, 114 S.W.3d 518, 2003 Tenn. LEXIS 826 (Tenn. 2003).

3. —Defective.

Where prosecution is commenced by indictment within the 12-month period but the indictment is quashed, state is not barred from getting a second indictment after the 12-month period if the second indictment is obtained without unreasonable delay and the second prosecution is so related to the first as to be a continuation of the first proceeding. Hickey v. State, 131 Tenn. 112, 174 S.W. 269, 1914 Tenn. LEXIS 91 (1915).

4. Misdemeanors Included in Felonies.

Where a defendant was indicted for a felony that included a misdemeanor, and was acquitted of the felony and found guilty of the misdemeanor, he is entitled to a discharge, if the offense was committed more than 12 months before the finding of the indictment. Turley v. State, 50 Tenn. 11, 1870 Tenn. LEXIS 225 (1870); Hickey v. State, 131 Tenn. 112, 174 S.W. 269, 1914 Tenn. LEXIS 91 (1915).

Trial court did not err in refusing to instruct jury on lesser included offenses embraced in the offense charged by the indictment where the lesser offenses would have been barred by limitation. Smith v. State, 205 Tenn. 502, 327 S.W.2d 308, 1959 Tenn. LEXIS 390 (1959).

5. —Bribery of Peace Officer.

The offense of conspiring to bribe a peace officer is a misdemeanor and is subject to the limitation of this section. Rose v. State, 177 Tenn. 586, 151 S.W.2d 1088, 1940 Tenn. LEXIS 58 (1941).

6. —Gambling Device Possession.

An indictment under § 39-6-615 (repealed; see § 39-17-505) for possession of a gambling device is within the term “gaming” as provided by this section so that the six-month statute of limitation is applicable. Vann v. State, 176 Tenn. 433, 143 S.W.2d 306, 1940 Tenn. LEXIS 82 (1940).

7. Violation of Injunction.

Defendants could not be held in contempt for acts in violation of an injunction alleged to have been committed more than one year next preceding the citation to “show cause,” for such acts are misdemeanors and are barred by the statute of limitations of one year. Church of God v. Tomlinson Church of God, 193 Tenn. 583, 247 S.W.2d 63, 1952 Tenn. LEXIS 328 (1952).

8. Civil Actions by State.

In view of § 28-1-113, the statute of limitations embraced in this section is not applicable to the state in civil actions. State ex rel. Cates v. Standard Oil Co., 120 Tenn. 86, 110 S.W. 565, 1907 Tenn. LEXIS 41 (1907), aff'd, Standard Oil Co. v. Tennessee, 217 U.S. 413, 30 S. Ct. 543, 54 L. Ed. 817, 1910 U.S. LEXIS 1967 (1910).

Because T.C.A. § 40-2-102 pertains to criminal misdemeanors, it did not apply to a case involving violation of a city ordinance, which was a civil matter. City of Johnson City v. Paduch, 224 S.W.3d 686, 2006 Tenn. App. LEXIS 732 (Tenn. Ct. App. Nov. 16, 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 300 (Tenn. Mar. 12, 2007).

9. Tolling Statute.

While it is true that the statute of limitations may be tolled when an offense is of a continuing nature, the specific facts which toll the limitation period must be pleaded and proved. State v. Thorpe, 614 S.W.2d 60, 1980 Tenn. Crim. App. LEXIS 350 (Tenn. Crim. App. 1980).

Where no allegation had been made by the state that any affirmative act by the defendant had taken place within the limitations period, the presentment was properly dismissed. State v. Thorpe, 614 S.W.2d 60, 1980 Tenn. Crim. App. LEXIS 350 (Tenn. Crim. App. 1980).

Where defendant was arrested on a warrant for D.U.I. and more than one year later was charged by indictment for driving while under the influence of an intoxicant and for driving with an alcohol concentration of .10 percent or more, his prosecution was commenced upon the execution of the arrest warrant for purposes of determining the running of the statute of limitations. State v. Tait, 114 S.W.3d 518, 2003 Tenn. LEXIS 826 (Tenn. 2003).

Trial court properly took judicial notice of its own prior proceedings; because defendant's first indictment was timely and pending at the time the grand jury returned the second indictment, the one-year statute of limitations applicable to misdemeanors under T.C.A. § 40-2-102(a) was tolled. The order of expunction should not have been entered and was of no effect and thus, defendant's conviction for driving under the influence, third offense, was proper. State v. Lawson, 291 S.W.3d 864, 2009 Tenn. LEXIS 514 (Tenn. Aug. 24, 2009).

10. Pleading Limitations.

Defense of statute of limitations in a criminal trial must be raised prior to trial or it is untimely. State v. Hill, 623 S.W.2d 293, 1981 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. 1981).

11. Case Timely Commenced.

Trial court properly denied defendant's motion to dismiss the indictment, because the timely issuance of the arrest warrant commenced the prosecution of defendant's DUI and was will within the one-year statute of limitations. State v. Hughes, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 15, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 511 (Tenn. June 29, 2016).

State timely commenced prosecution and therefore defendant's motion to dismiss was properly denied because defendant was bound over to the grand jury on the DUI charges within one year the offense. State v. Parton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 395 (Tenn. Crim. App. July 8, 2019).

12. Case Not Timely Commenced.

Because no arrest warrant was issued and the affidavit of complaint which purported to be the charging instrument was void, the State failed to commence any prosecution against defendant within the applicable statute of limitations and the trial court properly granted defendant's motion to dismiss. State v. Jones, 512 S.W.3d 258, 2016 Tenn. Crim. App. LEXIS 463 (Tenn. Crim. App. June 29, 2016).

Trial court properly granted defendant's motion to dismiss an indictment charging her with the misdemeanor offenses of driving under the influence and simple possession of marijuana because no document in the record qualified as a valid arrest warrant, the State failed to establish that defendant's first appearance in general sessions court was within the applicable statute of limitations, and more than one year had elapsed between date of the offenses and date defendant's case was bound over to the grand jury. State v. Hayes, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 466 (Tenn. Crim. App. June 29, 2016).

Record supported the trial court's dismissal of the charges against defendant because, despite the parties'  and the trial court's apparent belief, the affidavit of complaint document, regardless of the validity of the procedure utilized to create it, did not evolve into an arrest warrant and was insufficient to commence the prosecution and thus, the case was not commenced before the expiration of the statute of limitations. State v. Gonzalez, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 530 (Tenn. Crim. App. July 21, 2016).

State failed to commence prosecution against defendant within the statute of limitations because no arrest warrant was issued, and the affidavit of complaint that purported to be the charging instrument was void and did not serve to charge defendant with any offense; accordingly, defendant's appearances did not serve to commence prosecution against him even though he did not raise the issue of the lack of any charging instrument because he had not been charged with any offenses at that time. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. Aug. 4, 2016).

Circuit court properly granted defendant's motion to dismiss the misdemeanor charges of driving under the influence and following too closely because the prosecution was not commenced within the one-year statute of limitations, and the affidavit of complaint was invalid where it was signed before a notary public rather than a qualified judicial officer, and there was no evidence in the record to indicate that defendant did, in fact, make any court appearance prior to the time she waived her right to a preliminary hearing, more than one year after the commission of the offenses. State v. Helbert, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 183 (Tenn. Crim. App. Mar. 10, 2017).

Jury was properly instructed in defendant's trial because no lesser-included offense instructions were required as (1) the statute of limitations had expired as to the offenses and nothing showed defendant waived the statute of limitations, and (2) the jury's verdict showed the jury rejected any basis for the lesser-included offenses instead of the charged offenses. State v. Gossett, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Mar. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 482 (Tenn. Aug. 18, 2017).

40-2-103. Period of concealment of crime or absence from state.

No period during which the party charged conceals the fact of the crime, or during which the party charged was not usually and publicly resident within the state, is included in the period of limitation.

Code 1858, § 4988; Shan., § 6947; mod. Code 1932, § 11488; T.C.A. (orig. ed.), § 40-205.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.17, 16.85.

Tennessee Jurisprudence, 18 Tenn. Juris., Limitations of Actions, §§ 18, 42.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Facts Avoiding Bar — Necessity in Indictment.

Where the offense was not committed within the statutory period before suit, the indictment must aver the facts necessary to obviate the statutory bar, as that the defendant, for a certain specified period, was not usually and publicly resident within the state. State v. House, 2 Shan. 610 (1877).

Where an indictment or presentment shows upon its face, or by stipulation, that the applicable statute of limitations has expired, the instrument must allege facts which demonstrate that the statute was tolled for a sufficient period of time to avoid the bar of the statute of limitations. State v. Davidson, 816 S.W.2d 316, 1991 Tenn. LEXIS 320 (Tenn. 1991), rehearing denied, 1991 Tenn. LEXIS 424 .

2. Concealment.

Where victims were aware of the offenses for which defendant was convicted, but failed to tell the authorities, defendant's request to the victims that they not tell anyone about the offenses was not concealment, and did not toll the statute of limitations in a child abuse case. State v. Tidwell, 775 S.W.2d 379, 1989 Tenn. Crim. App. LEXIS 211 (Tenn. Crim. App. 1989).

If coercion against a minor victim of sexual abuse could amount to concealment of the crime so as to toll the running of the statute of limitations, the time frame for the coercion constituting the concealment would need to be alleged. State v. Davidson, 816 S.W.2d 316, 1991 Tenn. LEXIS 320 (Tenn. 1991), rehearing denied, 1991 Tenn. LEXIS 424 .

If the tolling is triggered by concealment, the statute would begin to run when the concealment ceased. State v. Davidson, 816 S.W.2d 316, 1991 Tenn. LEXIS 320 (Tenn. 1991), rehearing denied, 1991 Tenn. LEXIS 424 .

Parental control alone is insufficient to constitute concealment under T.C.A. § 40-2-103. State v. Henry, 834 S.W.2d 273, 1992 Tenn. LEXIS 361 (Tenn. 1992).

Parental control, when coupled with positive acts of intimidation, sufficiently constitutes concealment so as to toll the statute. State v. Henry, 834 S.W.2d 273, 1992 Tenn. LEXIS 361 (Tenn. 1992).

In a prosecution for embezzlement, forgery, breach of trust and related offenses, where defendant went to great lengths to conceal her misappropriations, there was sufficient proof of concealment which tolled the applicable statutes of limitations. State v. White, 939 S.W.2d 113, 1996 Tenn. Crim. App. LEXIS 375 (Tenn. Crim. App. 1996).

3. Prosecution Untimely.

Institution of incest charges was not timely. State v. Henry, 834 S.W.2d 273, 1992 Tenn. LEXIS 361 (Tenn. 1992).

Defendant's 1988 indictments on three counts of aggravated rape, aggravated sexual battery, and use of a minor for obscene purposes all occurred more than four years after the offenses; therefore, since there was no evidence of concealment, including threats to the victims on the part of defendant, the proof was inadequate to support a tolling of the statutes of limitation, depriving the trial court of subject-matter jurisdiction. Morgan v. State, 847 S.W.2d 538, 1992 Tenn. Crim. App. LEXIS 731 (Tenn. Crim. App. 1992).

40-2-104. Commencement of prosecution.

A prosecution is commenced, within the meaning of this chapter, by finding an indictment or presentment, the issuing of a warrant, the issuing of a juvenile petition alleging a delinquent act, binding over the offender, by the filing of an information as provided for in chapter 3 of this title, or by making an appearance in person or through counsel in general sessions or any municipal court for the purpose of continuing the matter or any other appearance in either court for any purpose involving the offense. A prosecution is also commenced, within the meaning of this chapter, by finding an indictment or presentment or the issuing of a warrant identifying the offender by a deoxyribonucleic acid (DNA) profile.

Code 1858, § 4987; Shan., § 6946; mod. Code 1932, § 11485; Acts 1975, ch. 258, § 4; 1977, ch. 179, §§ 1, 2; T.C.A. (orig. ed.), § 40-206; Acts 2007, ch. 4, § 1; 2013, ch. 205, § 1.

Compiler's Note. Acts 2013, ch. 205, § 2 provided that the act, which added the last sentence of this section, shall apply to commencement of prosecution for any offense, regardless of when committed, except those offenses for which prosecution is barred on July 1, 2013, because the applicable time limitation set out in § 40-2-101 has expired.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.56, 16.84.

Tennessee Jurisprudence, 18 Tenn. Juris., Limitations of Actions, § 18.

Law Reviews.

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

Attorney General Opinions. Retired misdemeanor cases.  OAG 11-4, 2011 Tenn. AG LEXIS 4 (1/7/11).

Multiple crimes in single warrant.  OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. Running of Statute.

The statute of limitations applies to the period elapsing between the commission of the offense and the date that the prosecution is begun. State ex rel. Lewis v. State, 1 Tenn. Crim. App. 535, 447 S.W.2d 42, 1969 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. 1969).

Tennessee courts have permitted the state to amend the indictment to allege facts which would toll the statute of limitations in cases in which the prosecution began after the limitations period had expired; however, amending the indictment to bring the offense within the statute of limitations does not deem the defendant to be prejudiced simply because the amendment affects the calculation of the limitations period, nor is the amendment viewed as charging a new offense, i.e., one that is not time-barred. State v. Kennedy, 10 S.W.3d 280, 1999 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1999).

A superseding indictment issued after the statute of limitations has elapsed need not allege facts showing that the prosecution was timely commenced with a prior presentment or indictment. State v. Nielsen, 44 S.W.3d 496, 2001 Tenn. LEXIS 383 (Tenn. 2001).

Where defendant was arrested on a warrant for D.U.I. and more than one year later was charged by indictment for driving while under the influence of an intoxicant and for driving with an alcohol concentration of .10 percent or more, his prosecution was commenced upon the execution of the arrest warrant for purposes of determining the running of the statute of limitations. State v. Tait, 114 S.W.3d 518, 2003 Tenn. LEXIS 826 (Tenn. 2003).

Trial court properly took judicial notice of its own prior proceedings; because defendant's first indictment was timely and pending at the time the grand jury returned the second indictment, the one-year statute of limitations applicable to misdemeanors under T.C.A. § 40-2-102(a) was tolled. The order of expunction should not have been entered and was of no effect and thus, defendant's conviction for driving under the influence, third offense, was proper. State v. Lawson, 291 S.W.3d 864, 2009 Tenn. LEXIS 514 (Tenn. Aug. 24, 2009).

Plain language of T.C.A. § 40-2-104 provides five specific ways by which a prosecution may be commenced, and an affidavit of complaint is not listed among the alternatives; an affidavit of complaint is merely a statement alleging that a person has committed an offense pursuant to Tenn. R. Crim. P. 3 and is not, standing alone, sufficient to provide formal notice of the offense charged. Because an arrest warrant may or may not issue upon the affidavit of complaint, the affidavit of complaint will not necessarily provide a defendant with notice that he is being charged with an offense, and an affidavit of complaint, with nothing more to provide a defendant with notice, is not a charging instrument. State v. McCloud, 310 S.W.3d 851, 2009 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. June 12, 2009).

Citation issued by an officer in lieu of a custodial arrest is not a formal accusation. Just as a warrantless custodial arrest does not, alone, commence a prosecution, a citation issued in lieu of an arrest is not the result of an independent probable cause determination and, therefore, does not mark the beginning of the prosecution. State v. McCloud, 310 S.W.3d 851, 2009 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. June 12, 2009).

Defendant's conviction for attempted aggravated rape was not barred by the statute of limitations, T.C.A. § 40-2-101(b)(1)-(2), because the John Doe arrest warrant and DNA profile commenced the prosecution against defendant in a timely fashion and tolled the statute of limitations until he was identified and apprehended; a John Doe warrant coupled with a DNA profile of an unknown suspected offender obtained before the expiration of the applicable statute of limitations may validly commence a criminal prosecution and toll the statute of limitations. State v. Burdick, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 886 (Tenn. Crim. App. Dec. 2, 2011), aff'd, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

Record supported the trial court's dismissal of the charges against defendant because, despite the parties'  and the trial court's apparent belief, the affidavit of complaint document, regardless of the validity of the procedure utilized to create it, did not evolve into an arrest warrant and was insufficient to commence the prosecution and thus, the case was not commenced before the expiration of the statute of limitations. State v. Gonzalez, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 530 (Tenn. Crim. App. July 21, 2016).

Jury was properly instructed in defendant's trial because no lesser-included offense instructions were required as (1) the statute of limitations had expired as to the offenses and nothing showed defendant waived the statute of limitations, and (2) the jury's verdict showed the jury rejected any basis for the lesser-included offenses instead of the charged offenses. State v. Gossett, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Mar. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 482 (Tenn. Aug. 18, 2017).

2. Timeliness.

Prosecution for attempted aggravated rape was properly and timely commenced with in the eight-year statute of limitations for attempted aggravated rape, T.C.A. § 40-2-101(b)(1)-(2), by the filing of the “John Doe” arrest warrant because The “John Doe” designation in the warrant, coupled with the detailed DNA profile of the assailant, identified defendant with “reasonable certainty” as required by the Fourth Amendment, Tenn. Const. art. I, § 7, T.C.A. § 40-6-208, and Tenn. R. Crim. P. 4(c)(1)(B). State v. Burdick, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

State failed to commence prosecution against defendant within the statute of limitations because no arrest warrant was issued, and the affidavit of complaint that purported to be the charging instrument was void and did not serve to charge defendant with any offense; accordingly, defendant's appearances did not serve to commence prosecution against him even though he did not raise the issue of the lack of any charging instrument because he had not been charged with any offenses at that time. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. Aug. 4, 2016).

Circuit court properly granted defendant's motion to dismiss an indictment charging him with driving under the influence because the prosecution was not commenced within the one-year statute of limitations, the affidavit of complaint was signed before a notary public rather than a qualified judicial officer, and there was no evidence in the record to indicate that defendant did, in fact, make any court appearance prior to the time he waived his right to a preliminary hearing, more than one year after the commission of the offenses. State v. Grieco, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 182 (Tenn. Crim. App. Mar. 10, 2017).

3. Case Timely Commenced.

Trial court properly denied defendant's motion to dismiss the indictment, because the timely issuance of the arrest warrant commenced the prosecution of defendant's DUI and was will within the one-year statute of limitations State v. Hughes, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 15, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 511 (Tenn. June 29, 2016).

State timely commenced prosecution and therefore defendant's motion to dismiss was properly denied because defendant was bound over to the grand jury on the DUI charges within one year the offense. State v. Parton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 395 (Tenn. Crim. App. July 8, 2019).

4. Case Not Properly Commenced.

Record supported the trial court's dismissal of the charges against defendant because the affidavit of complaint document, regardless of the validity of the procedure utilized to create it, did not evolve into an arrest warrant and was insufficient to commence the prosecution. State v. Shell, 512 S.W.3d 267, 2016 Tenn. Crim. App. LEXIS 474 (Tenn. Crim. App. June 29, 2016).

40-2-105. Suspension of statute because of irregularities in prosecution.

When the judgment is arrested, or the indictment or presentment quashed for any defect in the indictment or presentment, or for the reason that it was not found by a grand jury regularly organized, or because it charged no offense, or for any other cause, or when the prosecution is dismissed because of a variance between the allegations of the indictment or presentment and the evidence, and a new indictment or presentment is ordered to be preferred, the time elapsing between the preferring of the first charge, indictment or presentment and the next subsequent term of court must be deducted from the time limited for the prosecution of the offense last charged.

Code 1932, § 11486; T.C.A. (orig. ed.), § 40-207.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.2, 12.36, 16.1, 16.85.

Law Reviews.

Criminal Law and Procedure — 1960 Tennessee Survey (Robert E. Kendrick), 13 Vand. L. Rev. 1059 (1960).

NOTES TO DECISIONS

1. Application and Scope.

This section was inapplicable where first indictment had not been quashed before another indictment was brought and second indictment was not ordered by court but apparently was brought on the initiative of the district attorney general. State v. Comstock, 205 Tenn. 389, 326 S.W.2d 669, 1959 Tenn. LEXIS 377 (1959).

40-2-106. Suspension on reversal.

When an indictment or presentment is quashed, or the proceedings on the indictment or presentment are set aside, or reversed on writ of error, the time during the pendency of the indictment or presentment so quashed, set aside or reversed shall not be reckoned within the time limited by this chapter, so as to bar any new indictment or presentment for the same offense.

Code 1932, § 11487; T.C.A. (orig. ed.), § 40-208.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.85.

Tennessee Jurisprudence, 18 Tenn. Juris., Limitations of Actions, § 18.

NOTES TO DECISIONS

1. Application and Scope.

Where first indictment for misdemeanor was brought within the period of one year from the commission of the offense and second indictment was brought on initiative of district attorney general, this section would have been applicable and the time during which the first indictment was pending would have tolled the statute if the specific facts necessary for the tolling of the statute had been pleaded and proved, but where this was not done the second indictment was barred when brought after a lapse of more than 12 months. State v. Comstock, 205 Tenn. 389, 326 S.W.2d 669, 1959 Tenn. LEXIS 377 (1959).

Chapter 3
Methods of Prosecution

Part 1
General Provisions

40-3-101. Methods enumerated.

No person shall be put to answer any criminal charge, but by presentment, indictment or impeachment; provided, that, in accordance with this chapter, an accused represented by an attorney may waive the right to be tried upon presentment or indictment and consent to prosecution by information.

Code 1858, § 4989; Shan., § 6948; mod. Code 1932, § 11489; Acts 1975, ch. 258, § 1; T.C.A. (orig. ed.), § 40-301.

Cross-References. Indictment or presentment, title 40, ch. 13.

Indictments, presentments and information, Tenn. R. Crim. P. 7.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 22.50, 22.52.

NOTES TO DECISIONS

1. Form of Presentment.

There are no specifications or requirements in the constitution or code as to the form or manner or method in which a presentment must be made. Stoots v. State, 205 Tenn. 59, 325 S.W.2d 532, 1959 Tenn. LEXIS 341 (1959).

2. Private Act — Constitutionality.

An act which conferred power upon a particular city court to determine its jurisdiction by making its own classification of misdemeanors, and to arraign without presentment or indictment and try without a jury, was contrary to the law of the land. Spurgeon v. Worley, 169 Tenn. 697, 90 S.W.2d 948, 1935 Tenn. LEXIS 98 (1936).

3. Validity of Judgment.

Where there was no charging document in the municipal court records, the city judge had no jurisdiction to entertain the defendant's guilty plea and the resulting judgment was void. Myers v. State, 577 S.W.2d 679, 1978 Tenn. Crim. App. LEXIS 279 (Tenn. Crim. App. 1978).

4. Trial in Absentia.

Inmate filed a claim against the state alleging that the trial judge deprived him of his statutory rights because the indictments against him were void and because he was tried, convicted, and sentenced in absentia; he based his claim on T.C.A. §§ 40-3-101, 40-14-101, 40-14-102, 40-17-105, and 40-18-118, and Tenn. R. Crim. P. 43, but none of those statutes and rules expressly conferred a private right of action against the state to him; thus, the Tennessee claims commission for the eastern grand district did not err when it held that it lacked subject matter jurisdiction over the inmate's claim pursuant to T.C.A. § 9-8-307(a)(1)(N) and that the inmate failed to state a claim upon which relief can be granted. Therefore, pursuant to Tenn. Const. art. I, § 17, the commission did not err when it granted the state's motion to dismiss, Tenn. R. Civ. P. 12.02(1). Williams v. State, 139 S.W.3d 308, 2004 Tenn. App. LEXIS 43 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 530 (Tenn. June 1, 2004), appeal denied, Williams v. Parker, — S.W.3d —, 2006 Tenn. LEXIS 9 (Tenn. 2006).

40-3-102. Indictment or presentment.

All violations of the criminal laws may be prosecuted by indictment or presentment of a grand jury, and a presentment may be made upon the information of any one (1) of the grand jury.

Code 1858, § 4990 (deriv. Acts 1841-1842, ch. 141, § 4); Shan., § 6949; Code 1932, § 11490; T.C.A. (orig. ed.), § 40-302.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Purpose.

This section was intended to make offenses which were indictable also presentable and vice versa, and to make the knowledge and information of one grand juror sufficient for a presentment, but it was not intended to create new misdemeanors. State v. Maze, 25 Tenn. 17, 1845 Tenn. LEXIS 1 (1845).

2. Source of Jury's Information.

Presentment need not show that it was found upon information or knowledge of the grand jury, or any one of them. State v. Lewis, 87 Tenn. 119, 9 S.W. 427, 1888 Tenn. LEXIS 42 (1888).

Presentment did not show that it was found upon the testimony of witnesses, because of the endorsed designation of witnesses to be summoned by the state. State v. Lewis, 87 Tenn. 119, 9 S.W. 427, 1888 Tenn. LEXIS 42 (1888); Sadler v. State, 124 Tenn. 50, 136 S.W. 430, 1910 Tenn. LEXIS 40 (1911).

The question as to the basis on which the grand jury has made the presentment can be raised only by plea in abatement, not by motion to quash. State v. Lewis, 87 Tenn. 119, 9 S.W. 427, 1888 Tenn. LEXIS 42 (1888); Bowman v. State, 160 Tenn. 305, 23 S.W.2d 658, 1929 Tenn. LEXIS 106 (1930).

A presentment may be returned, either upon the personal information or knowledge of the grand jurors, or one of them, or upon the testimony of witnesses heard by them. Sadler v. State, 124 Tenn. 50, 136 S.W. 430, 1910 Tenn. LEXIS 40 (1911).

3. Endorsement.

Although an indictment must be endorsed “a true bill” since it is signed only by the foreman of the grand jury, a presentment, which is signed by all of the grand jurors, need not be endorsed “a true bill,” the section being significantly silent as to such endorsements being required. Martin v. State, 127 Tenn. 324, 155 S.W. 129, 1912 Tenn. LEXIS 30 (1913).

The requirements for the authentication of indictments by endorsement and minute entry are not, by statute, made applicable to presentments, which are required to be authenticated by the signatures of all the grand jurors, and hence need not be evidenced by such endorsement and minute entry required as to indictments. Martin v. State, 127 Tenn. 324, 155 S.W. 129, 1912 Tenn. LEXIS 30 (1913).

There is no requirement that a presentment be signed by all of the grand jurors. Stoots v. State, 205 Tenn. 59, 325 S.W.2d 532, 1959 Tenn. LEXIS 341 (1959).

Presentment was not invalid because a member of the grand jury who was selected as secretary endorsed the names of other grand jury members with their authorization and in their presence. Stoots v. State, 205 Tenn. 59, 325 S.W.2d 532, 1959 Tenn. LEXIS 341 (1959).

4. Form of Making Presentments.

There are no specifications or requirements in the constitution or code as to the form, manner or method in which a presentment must be made. Stoots v. State, 205 Tenn. 59, 325 S.W.2d 532, 1959 Tenn. LEXIS 341 (1959).

40-3-103. Information.

  1. All violations of the criminal laws may, with the consent of the accused and the accused's attorney and of the court, be prosecuted upon the filing of an information.
  2. “Information” means a written statement by a district attorney general charging a person with the commission of a criminal offense.
    1. It is the mandatory duty of the court, before consenting to a prosecution by information, to advise the accused in the presence of the accused's attorney of the accused's constitutional right to be tried only upon presentment or indictment of the grand jury of the accused's peers.
    2. Upon the accused's agreeing in writing in the presence of the accused's attorney to waive such right, the court may proceed in all respects as in cases prosecuted by indictment or presentment.
    3. The written waiver required in subdivision (c)(2) shall be attached to and become a part of the information.

Acts 1975, ch. 258, §§ 2, 3; T.C.A., §§ 40-306, 40-307.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 9.2, 22.50, 24.11, 22.52.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

40-3-104. Actions in name of state.

All criminal actions are prosecuted in the name of the state of Tennessee against the party charged with the offense.

Code 1858, § 4991; Shan., § 6950; Code 1932, § 11491; T.C.A. (orig. ed.), § 40-303.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 12.4.

Attorney General Opinions. Standing of bonding company to commence failure to appear action.  OAG 12-83, 2012 Tenn. AG LEXIS 82 (8/23/12).

40-3-105. Prosecution for same offense in both state and municipal court prohibited.

  1. Whenever the commission of any act or the omission to act under certain circumstances constitutes both a violation of state law and a violation of municipal law, notwithstanding the fact that different penalties are provided, no person shall be prosecuted in both a state court and a municipal court for the same offense.
  2. A dismissal on the merits, acquittal or conviction of the offense in one (1) court, pleaded and shown, shall be a bar to prosecution for the offense in the other court.

Acts 1971, ch. 183, § 1; 1972, ch. 659, § 1; T.C.A., § 40-305.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 16.109.

Part 2
Fraud and Economic Crimes Prosecution Act

40-3-201. Short title.

This part shall be known and may be cited as the “Fraud and Economic Crimes Prosecution Act.”

Acts 1984, ch. 998, § 1.

Cross-References. Worthless checks provisions, not repealing or amending Fraud and Economic Crimes Prosecution Act, § 39-14-121.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 28.97.

Attorney General Opinions. A district attorney general is not authorized to contract with a private company to run a pretrial restitution/diversion program for worthless checks, OAG 07-031 (3/22/07).

40-3-202. Legislative intent.

The intent of this part is to provide district attorneys general of this state the resources necessary to deal effectively with fraud, economic, and other crimes, and to provide a means for obtaining restitution in bad check cases prior to the institution of formal criminal charges. Subject to the limitations of § 40-3-209(b), the use of any moneys collected under this part shall be directly related to fulfilling the prosecutorial duties of the district attorney general of the district and shall include, but not be limited to, the following:

  1. The enhancement of those resources as may already be available in each district for the prosecution of bad check cases, fraud and other economic crimes and to increase assistance to the victims of those crimes by aiding in the collection of restitution;
  2. The hiring of expert witnesses including, but not limited to, computer specialists, as the need arises;
  3. The expenses of specialized training for staff members to enhance their knowledge of methods of combating fraud and economic crimes and general criminal law enforcement when funds for training are not available; provided, that payment for training shall be limited to in-state programs unless the district attorney general determines that training is essential and not reasonably available within this state;
  4. Matching federal grants directly related to prosecutorial duties of the district attorney general;
  5. Salaries and salary supplements, which may only be paid through the district attorneys general conference for support staff (subject to the limitation of § 40-3-209(b) on the use of any funds to supplement the salary of any assistant district attorneys); provided, however, that not later than January 1, 2004, the district attorneys general conference shall perform, or cause to be performed, a classification/compensation study of support staff reasonably required for the effective operation of district attorneys general offices;
  6. The purchase of equipment and supplies necessary to carry out the purposes of this part; and
  7. The expenses of travel in the performance of official duties of the office that are directly related to prosecution of fraud and economic crimes and general criminal law enforcement when funds for travel are not available, subject to the limitations of the state of Tennessee comprehensive travel regulations. No moneys collected under this part shall be used to pay travel expenses in excess of the rates authorized under state travel regulations.

Acts 1984, ch. 998, § 2; 2003, ch. 291, § 1.

40-3-203. Bad check restitution program — Application — Fees and charges — Failure to pay bad check.

  1. Before commencing a criminal prosecution in a bad check case, any victim, including any municipal, county or state officer that has received a bad check, may apply to the clerk who serves the court of general criminal jurisdiction in the county where the alleged offense occurred for participation in the bad check restitution program. Upon completion of an application form and the payment of a ten-dollar fee by the victim, the clerk shall forward the form to the district attorney general, who shall then send a letter to the last known address of the alleged violator stating that unless the amount of the check plus the application fee and a handling charge of ten dollars ($10.00) is paid to the holder of the check within fifteen (15) days, a criminal prosecution may be commenced.
  2. The application form shall contain the name and address of the victim, the name and the address of the alleged violator, and shall have attached thereto a photocopy of the bad check. Except in those cases enumerated in § 39-14-121(e), the application shall also contain a sworn statement that the alleged violator has failed to pay the check within ten (10) days of receiving notice of the drawee's refusal to pay.
  3. The application fee shall be forwarded by the clerk to the county trustee as provided in § 40-3-207, with the clerk retaining five dollars ($5.00) as a fee for handling.
  4. In the event the alleged violator does not pay the check and is ultimately convicted of a criminal charge with respect to the check, any order directing the defendant to pay to the holder the amount due on the check shall also direct the defendant to reimburse the application fee paid under this section as well as to pay to the holder a handling fee of ten dollars ($10.00).

Acts 1984, ch. 998, § 3; 1985, ch. 175, §§ 1, 2; 1992, ch. 962, § 4.

40-3-204. Fees in criminal prosecutions.

  1. In criminal prosecutions, judges shall order that fees, in accordance with the schedule listed in subdivisions (b)(1)-(3), be paid by the person or corporations against whom the costs are taxed, and the clerk of the court shall collect those fees when the costs are paid. The state of Tennessee, and any county or political subdivision, shall be exempt from such costs.
    1. Worthless Check Prosecutions.  The amount of the fee shall be determined as follows:
      1. If the face amount of the check or sight order is under ten dollars ($10.00), the fee shall be five dollars ($5.00);
      2. If the face amount of the check or sight order is ten dollars ($10.00) or more but less than one hundred dollars ($100), the fee shall be ten dollars ($10.00);
      3. If the face amount of the check or sight order is one hundred dollars ($100) or more but less than three hundred dollars ($300), the fee shall be thirty dollars ($30.00);
      4. If the face amount of the check or sight order is three hundred dollars ($300) or more but less than five hundred dollars ($500), the fee shall be fifty dollars ($50.00); and
      5. If the face amount of the check or sight order is five hundred dollars ($500) or more, the fee shall be seventy-five dollars ($75.00).
    2. Forgery Prosecutions.  The face amount of the check or money order shall be the determining factor in arriving at the proper fee, and the same schedule that is established for worthless check prosecutions shall be applicable to forgery cases.
    3. Other Prosecutions.  In all offenses specified in title 39, chapter 14, parts 1 and 6, the fee shall be seventy-five dollars ($75.00), regardless of the amount alleged to have been stolen or taken.

Acts 1984, ch. 998, § 4; 1994, ch. 902, § 1.

Cross-References. Computer offenses, title 39, ch. 14, part 6.

Forgery, § 39-14-114.

Theft, title 39, ch. 14, part 1.

Worthless checks, § 39-14-121.

40-3-205. Payment of fees.

The fees set out in § 40-3-204 shall be paid under the following circumstances:

  1. In all cases where costs are paid by the defendant as a condition for dismissal of charges pursuant to a plea negotiation;
  2. In all cases where the defendant agrees to pay the costs in exchange for a dismissal of charges; and
  3. In all cases where the defendant is convicted before a judge or jury.

Acts 1984, ch. 998, § 5.

40-3-206. Collection of fees — Clerk's fee.

Any fees collected pursuant to this part shall be collected by the clerk of the court in the same manner in which other costs are collected. The clerk shall be entitled to a reasonable handling fee not to exceed five percent (5%) of the amount collected; provided, that in counties having a population of more than seven hundred thousand (700,000), according to the 1990 federal census or any subsequent federal census, the fee shall not exceed ten percent (10%) of the amount collected.

Acts 1984, ch. 998, § 6; 1995, ch. 456, § 9.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

40-3-207. Deposit of fees — Records — Reports — Audits.

  1. The clerk in each county shall deposit all fees collected in accordance with this part in an account with the county trustee in the county of the district attorney general's residence, and expenditures from this fund shall be made by the district attorney general only for the purposes provided in § 40-3-202.
  2. The district attorney general shall keep strict records as to the use of the funds, and shall annually submit to the comptroller of the treasury, for audit and comment, a detailed report of expenditures.
  3. In addition, the account maintained in the trustee's office shall be subject to audit by the comptroller of the treasury as a part of the comptroller of the treasury's regular post audit of county governmental agencies.

Acts 1984, ch. 998, § 7; 2003, ch. 291, § 2.

40-3-208. Immunity of officials and employees.

The district attorney general and assistant district attorneys general, district attorney general's investigators, district attorney general's secretaries and any other employee of the district attorney general shall not be civilly or criminally liable for acts performed pursuant to this part or in furtherance of the purposes of this part except as those acts relate to expenditure of and accounting for moneys collected under this part.

Acts 1984, ch. 998, § 9; 2003, ch. 291, § 3.

Cross-References. Sovereign immunity, § 20-13-102.

Tennessee Governmental Tort Liability Act, § 29-20-101 et seq.

40-3-209. Prosecuting attorney's office — Compensation not decreased — Authorized and unauthorized use of funds.

  1. Nothing in this part shall be construed to decrease the total salaries, expense funds and allowances that the prosecuting attorney's office is receiving on July 1, 1984.
  2. The district attorney general shall not use any of the funds collected pursuant to this part to supplement the district attorney general's salary, or to supplement the salary of any assistant district attorney general or other employee of a district attorney general, except as provided in § 40-3-202(5); provided, that should the state of Tennessee not have funds available to pay the salary and benefits of any district attorney general, assistant district attorney general or other employee of a district attorney general's office authorized by law to receive pay and benefits from the state of Tennessee, then in that event each district attorney general shall have the authority to transfer an amount from funds collected pursuant to this part sufficient to meet the district attorney general's office payroll to the state general fund, earmarked for payment of the salaries and benefits of the employees of the transferring district attorney general, so long as such funds exist. In no case shall any salaries and benefits so paid be greater than those otherwise authorized by state law. Funds collected pursuant to this part shall be expended only in furtherance of the purposes of this part.

Acts 1984, ch. 998, §§ 8, 10; 1992, ch. 785, § 1; 2003, ch. 291, § 4.

40-3-210. Existing laws not repealed — Fees additional.

This part does not repeal any existing statute and the fees described in this part shall be in addition to those already provided by law.

Acts 1984, ch. 998, § 11.

Chapter 4
Proceedings Before General Sessions Courts

40-4-101. Preliminary proceedings.

Judges of the courts of general sessions are authorized and empowered to:

  1. Make the preliminary examination and bind over the reputed father in bastardy cases;
  2. Summon a jury of inquest in cases of death by accident, as provided in § 38-5-103;
  3. Issue a warrant for a prisoner escaped from jail;
  4. Examine persons arrested for a crime;
  5. Bind a defendant over to court if probable cause be found; and
  6. Take bail in bailable offenses brought before the judges.

Code 1858, § 4970 (deriv. Acts 1715, ch. 16, § 1; 1741, ch. 14, § 10; 1777, ch. 8, § 9; 1817, ch. 100, § 1; 1825, ch. 36, § 4; 1831, ch. 4, § 1); Shan., § 6931; Code 1932, § 11470; T.C.A. (orig. ed.), § 40-401; Acts 1993, ch. 241, § 58.

Cross-References. Arrest for intoxication, §§ 33-10-202 and 33-10-203.

Initial appearance and preliminary examination, Tenn. R. Crim. P. 5, 5.1.

Jurisdiction of general sessions courts, §§ 16-15-401, 16-15-501, 40-1-109.

Law Reviews.

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

40-4-102. Investigation by grand jury.

  1. The grand jury shall make an investigation as to the offense charged in a warrant to have been committed, to the end that it may return an indictment or presentment, as prescribed and required by law for the charged offense.
  2. If an indictment or presentment is found against the defendant, the defendant shall then be proceeded with as now required by law in those cases.
  3. If no indictment or presentment is found, the defendant shall be discharged.
  4. The grand jury shall, immediately upon the receipt of the papers in the case, proceed to an investigation, and those cases shall have preference in the order presented over all other cases to be investigated by the grand jury.

Acts 1899, ch. 16, § 2; Shan., § 7034a2; Code 1932, § 11576; T.C.A. (orig. ed.), § 40-403.

Cross-References. Grand jury, Tenn. R. Crim. P. 6.

40-4-103. Plea of guilty.

If the defendant pleads guilty to the charges in the warrant, the proceedings in the case shall then be the same in all respects as now prescribed by law.

Acts 1899, ch. 16, § 3; Shan., § 7034a3; Code 1932, § 11577; T.C.A. (orig. ed.), § 40-405.

Law Reviews.

Pleading Guilty: Indigent Defendant Perceptions Of The Plea Process, 13 Tenn. J. L. & Pol'y 459 (Winter 2019).

NOTES TO DECISIONS

1. In General.

Before accepting a plea of guilty, the court must address the defendant personally in open court and inform him of, and determine that he understands, among other things, the following: (1) The nature of the charge and the penalty; (2) That a different or additional punishment may result by reason of prior convictions or other factors; (3) That he has a right to be represented by an attorney and that an attorney will be appointed if necessary; and (4) That he has the right to plead not guilty. The court must furthermore determine that the plea is voluntary and that there is a factual basis for the plea; a verbatim record of the proceedings must be made. State v. Mackey, 553 S.W.2d 337, 1977 Tenn. LEXIS 579 (Tenn. 1977), superseded by statute as stated in, State v. Chastain, 871 S.W.2d 661, 1994 Tenn. LEXIS 26 (Tenn. 1994), superseded by statute as stated in, State v. Wilson, 31 S.W.3d 189, 2000 Tenn. LEXIS 519 (Tenn. 2000).

40-4-104. [Reserved.]

If the charge is of violence to the person of another, the person on whom the violence has been committed shall be notified of the time and place of trial, so that such person may attend and be heard as a witness. Should the person conceal such person's location so as to avoid the service of notice, or fail to attend after due notice, the trial may be proceeded with as in other cases.

Code 1858, §§ 4995, 4996 (deriv. Acts 1849-1850, ch. 247, § 1; 1851-1852, ch. 15, § 2); Shan., §§ 6954, 6955; Code 1932, §§ 11495, 11496; T.C.A. (orig. ed.), § 40-409.

Cross-References. Domestic abuse, title 36, ch. 3, part 6.

Offenses against the person, title 39, ch. 13.

NOTES TO DECISIONS

1. Averment in Plea of Former Conviction.

The defendant's plea of former conviction must aver that the party against whose person the alleged violence was done was notified of the time and place of trial, or that he was present at the same. Fulkner v. State, 50 Tenn. 33, 1870 Tenn. LEXIS 231 (1870); Mikels v. State, 50 Tenn. 321, 1871 Tenn. LEXIS 104 (1871).

40-4-106. Payment of fine and costs.

On conviction, the offender shall immediately pay the fine and costs, or give security to pay them, or be imprisoned until they are paid. The fine and costs, if paid before execution, shall be paid to the clerk; if paid after execution, to the officer having the execution.

Code 1858, §§ 4997, 5002 (deriv. Acts 1847-1848, ch. 55, §§ 2, 7); Shan., §§ 6956, 6961; Code 1932, §§ 11497, 11501; T.C.A. (orig. ed.), § 40-410.

Cross-References. Costs of malicious or frivolous prosecutions, § 40-25-126.

Law Reviews.

The Tennessee Court System — General Sessions Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 375.

NOTES TO DECISIONS

1. Judge's Failure to Collect as Default.

A judge, who ignorantly or carelessly fails to collect money required to be paid by an offender under this section, does not thereby become a defaulter in such a sense as to render him ineligible to office. Zirkle v. Stegall, 163 Tenn. 323, 43 S.W.2d 192, 1931 Tenn. LEXIS 120 (1931).

40-4-107. Security for fine and costs.

One (1) or more persons may become security for the fine and costs by oral undertaking before the judge of the court of general sessions, or by written direction to the judge, and an entry of judgment based thereon.

Code 1858, §§ 4998, 5003 (deriv. Acts 1847-1848, ch. 55, §§ 3, 6); Shan., §§ 6957, 6962; Code 1932, §§ 11498, 11502; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-411; Acts 1993, ch. 241, § 59.

40-4-108. Execution for fine and costs.

If the offender gives security for fines and costs, the judge shall immediately issue execution against the offender and the offender's surety for the fine and costs, returnable as other executions.

Code 1858, § 4999 (deriv. Acts 1847-1848, ch. 55, § 4); Shan., § 6958; Code 1932, § 11499; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-412.

Cross-References. Collection of fees through circuit or criminal court, § 40-25-126 et seq.

40-4-109. [Reserved.]

The proceedings under this chapter may be superseded and removed, by certiorari, to the circuit court of the county, upon good cause shown by petition of any person aggrieved, verified by affidavit, upon the order of any district or criminal judge to whom the petition is presented.

Code 1858, § 5012 (deriv. Acts 1847-1848, ch. 55, § 22); Shan., § 6971; Code 1932, § 11510; T.C.A. (orig. ed.), § 40-414.

40-4-111. Bail pending appeal.

The defendant obtaining writs of certiorari and supersedeas may be discharged from custody upon giving bond and security for the defendant's appearance before the district or criminal court as in other misdemeanor cases.

Code 1858, § 5013 (deriv. Acts 1847-1848, ch. 55, § 23); Shan., § 6972; Code 1932, § 11511; T.C.A. (orig. ed.), § 40-415.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 4, 5.

40-4-112. Appeal from sentence imposed.

Notwithstanding any other provision of the law to the contrary, any person convicted of a criminal offense in a court of general sessions has the right to appeal the sentence imposed, without regard to whether the person was convicted upon a plea of guilty or upon a plea of not guilty.

Acts 1979, ch. 322, § 1; T.C.A., § 40-417.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 5 of the Tennessee Rules of Criminal Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.6, 7.9, 7.13, 16.109.

40-4-113 — 40-4-115 [Reserved.]

Any failure to comply with the requirements of this chapter by the officers named is a misdemeanor in office, and those officers are liable to judgments on their bonds, by motion, as in other cases of official bonds.

Code 1858, § 5010 (deriv. Acts 1851-1852, ch. 159, § 2); Shan., § 6969; Code 1932, § 11509; T.C.A. (orig. ed.), § 40-422.

Compiler's Notes. The misdemeanor offense provided in this section may be affected by the Criminal Sentencing Reform Act of 1989. See §§ 39-11-114, 40-35-110, 40-35-111.

40-4-117. Bail — Forfeiture.

  1. In all misdemeanor cases where bond is made for appearance before the court of general sessions, the judge is authorized and empowered to prescribe the amount of bail, either cash or otherwise, within the same discretionary powers as are granted to judges of the circuit and criminal courts by § 40-11-204.
  2. Upon default in appearance of the defendant, the judge before whom the default occurs is authorized to grant relief, lessen or remit liability upon the recognizance in such cases as provided for other courts in §§ 40-11-203 and 40-11-204; and, in the case of cash bonds, the judge may hear proof and order a fine and costs paid out of the cash bond.
  3. The unused surplus of cash bonds and other funds in excess of costs paid for exoneration of sureties shall be disbursed by the clerk as provided by law for forfeitures.

Acts 1959, ch. 109, § 10; T.C.A., § 40-424; Acts 1993, ch. 382, § 2.

Code Commission Notes.

Former subsection (d), concerning a judge's authorization to follow the procedure in misdemeanor cases, was deemed obsolete by the Code Commission in 2006.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.45.

40-4-118 — 40-4-120. [Reserved.]

  1. In all counties of this state having a population of not less than three hundred seventy thousand (370,000) nor more than four hundred thousand (400,000), according to the federal census of 2000 or any subsequent federal census, legal process in all cases wherein a violation of the laws of the state of Tennessee is charged shall be returnable to the general sessions courts of the various counties coming within §§ 40-4-121 — 40-4-124.
  2. The judges of those courts shall have sole and exclusive jurisdiction, pursuant to the Small Offense Law [repealed], to hear and make final determination of all cases.
  3. Appeals to the rulings of the general sessions courts may be filed as is presently provided by law.
  4. Any preliminary hearing in the general sessions courts shall be conducted in accordance with existing state law.

Acts 1970, ch. 464, § 1; 1972, ch. 611, § 1; 1980, ch. 581, § 1; T.C.A., § 40-427; Acts 2002, ch. 515, § 1.

Compiler's Notes. The Small Offense Law (Acts 1943, ch. 40, § 1; mod. C. Supp. 1950, § 11494.1 (Williams, § 11575); T.C.A. (orig. ed.), § 40-408), referred to in this section, was repealed by Acts 1979, ch. 339, § 1. For new law, see Tenn. R. Crim. P. 5.

For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. § 40-4-121 is not in contravention of the home rule amendment in Tenn. Const., art. XI, § 9. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

2. Construction.

The provisions of T.C.A. §§ 40-4-12140-4-124 are not private or local in nature, but constitute a general act. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

3. Legislative Intent.

T.C.A. §§ 16-17-10116-17-105 are not intended to repeal T.C.A. §§ 40-4-12140-4-124. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

4. State Criminal Jurisdiction.

T.C.A. §§ 16-17-101 and 16-17-103 (now repealed) do not confer state criminal jurisdiction upon corporation courts in those municipalities within counties whose jurisdiction was removed by T.C.A. §§ 40-4-12140-4-124. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

40-4-122. Municipal courts divested of jurisdiction.

  1. It is expressly provided that the municipal courts which are located in counties of this state coming within §§ 40-4-121 — 40-4-124 shall not have any jurisdiction of cases wherein a violation of the laws of the state of Tennessee is charged and alleged, it being the legislative intent of §§ 40-4-121 — 40-4-124 to vest jurisdiction of those cases in the various general sessions courts of the counties coming within §§ 40-4-121 — 40-4-124. The offenses enumerated in subsection (b) are declared to be state offenses, and any person charged for violation of those offenses shall be tried only in state courts, as provided in § 40-4-121, in which jurisdiction shall be exclusive. Any ordinance presently enacted to regulate any of the enumerated offenses, or to be later enacted, is declared to be void, repealed and of no effect.
  2. The enumerated offenses are as follows:
    1. Driving while intoxicated or drugged, as forbidden by § 55-10-401;
    2. Failing to stop after a traffic accident, as forbidden by title 55, chapter 10, part 1;
    3. Driving while license suspended or revoked, as forbidden by § 55-50-504; and
    4. Drag racing, as defined and forbidden by § 55-10-501.

Acts 1970, ch. 464, § 2; T.C.A., § 40-428.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.81.

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. § 40-4-122 is not in contravention of the home rule amendment in Tenn. Const., art. XI, § 9. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

2. Construction.

The provisions of T.C.A. §§ 40-4-12140-4-124 are not private or local in nature, but constitute a general act. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

3. Legislative Intent.

T.C.A. § 16-17-101 et seq. are not intended to repeal T.C.A. § 40-4-121 et seq. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

4. State Criminal Jurisdiction.

T.C.A. §§ 16-17-101 and 16-17-103 (now repealed) do not confer state criminal jurisdiction upon corporation courts in those municipalities within counties whose jurisdiction was removed by T.C.A. §§ 40-4-12140-4-124. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

Municipal courts of the City of Knoxville do not have jurisdiction over state criminal offenses committed within the municipal boundaries. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

If the general assembly could validly confer state criminal jurisdiction upon the municipal courts of Knoxville as it did years ago in the early charter provisions, it could also remove that jurisdiction without violating the Home Rule Amendment or any other provisions of the state constitution; it has plenary power in conferring jurisdiction of criminal offenses against the state, and may add this to corporation courts or withdraw it, in its discretion, under Tenn. Const., art. VI, § 1. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

5. Preliminary Hearing.

Fact that preliminary hearing was before municipal court which bound defendant over to grand jury did not affect validity of indictment properly found by grand jury. Farr v. State, 506 S.W.2d 811, 1974 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. 1974).

40-4-123. Distribution of fines, forfeitures and penalties.

In all counties coming within the provisions of §§ 40-4-12140-4-124, the clerk of the general sessions court, on or before the tenth day of each month, shall pay over to the proper official of any municipality located within the county, fifty percent (50%) of all fines, forfeitures or penalties arising out of those cases disposed of in the general sessions courts during the preceding month where the arrests and prosecution of those cases were made by police officers of any municipality located within any county affected by the provisions of §§ 40-4-12140-4-124. The remainder and all other fines shall be paid and accounted for as provided by law.

Acts 1970, ch. 464, § 4; T.C.A., § 40-429.

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. § 40-4-123 is not in contravention of the home rule amendment in Tenn. Const., art. XI, § 9. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

2. Construction.

The provisions of T.C.A. §§ 40-4-12140-4-124 are not private or local in nature, but constitute a general act. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

3. Legislative Intent.

T.C.A. § 16-17-101 et seq. are not intended to repeal T.C.A. § 40-4-121 et seq. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

4. State Criminal Jurisdiction.

T.C.A. §§ 16-17-101 and 16-17-103 (now repealed) do not confer state criminal jurisdiction upon corporation courts in those municipalities within counties whose jurisdiction was removed by T.C.A. §§ 40-4-12140-4-124. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

40-4-124. Effect on private acts and city charters.

Sections 40-4-121 — 40-4-124 shall govern the structure and operation of the general sessions courts in counties falling within the provisions of those sections, notwithstanding any private act or city charter to the contrary, and the operation of any private act or city charter in conflict with these sections is repealed and suspended.

Acts 1970, ch. 464, § 6; T.C.A., § 40-430.

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. § 40-4-124 is not in contravention of the home rule amendment in Tenn. Const., art. XI, § 9. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

2. Construction.

The provisions of T.C.A. §§ 40-4-12140-4-124 are not private or local in nature, but constitute a general act. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

3. Legislative Intent.

T.C.A. § 16-17-101 et seq. are not intended to repeal T.C.A. § 40-4-121 et seq. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

4. State Criminal Jurisdiction.

T.C.A. §§ 16-17-101 and 16-17-103 (now repealed) do not confer state criminal jurisdiction upon corporation courts in those municipalities within counties whose jurisdiction was removed by T.C.A. §§ 40-4-12140-4-124. Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 1984 Tenn. LEXIS 804 (Tenn. 1984).

40-4-105. Notice of trial to victim of personal violence.

40-4-110. Appeal of proceedings.

40-4-116. Liability for neglect of duty.

40-4-121. Jurisdiction of general sessions courts in certain counties.

Chapter 5
Magistrates and Judicial Commissioners

Part 1
Examination Before Magistrates

40-5-101. “Magistrate” defined.

A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense.

Code 1858, § 5015; Shan., § 6974; Code 1932, § 11513; T.C.A. (orig. ed.), § 40-602.

Cross-References. Officials designated as magistrates, § 40-1-106.

Power to issue warrants of arrest, § 40-6-202.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.6.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

1. Issuance of Search Warrants.

Because a retired judge was neither a magistrate as defined in T.C.A. § 40-5-101, nor did the judge have authority as a special general sessions judge under T.C.A. § 16-15-209, the judge did not have legal authority to issue a search warrant; therefore, the warrant was void ab initio and the evidence had to be suppressed. United States v. Scott, 260 F.3d 512, 2001 FED App. 235P, 2001 U.S. App. LEXIS 16516 (6th Cir. Tenn. 2001).

40-5-102. Officials who are magistrates.

The following are magistrates within the meaning of this part:

  1. The judges of the supreme court;
  2. The judges of the circuit and criminal courts;
  3. Judicial commissioners;
  4. Judges of the courts of general sessions;
  5. City judges in cities and towns; and
  6. Judges of juvenile courts.

Code 1858, § 5016; Shan., § 6975; Code 1932, § 11514; Acts 1978, ch. 933, § 3; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-603; Acts 1993, ch. 115, § 5; 1993, ch. 241, § 65.

Cross-References. Officials designated as magistrates, § 40-1-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.6, 3.2.

Attorney General Opinions. Judicial commissioners acting as magistrates, OAG 97-093 (6/26/97).

County judicial commissioners are vested with the authority to make a probable cause determination on a warrantless arrest, OAG 01-038 (3/19/01).

NOTES TO DECISIONS

1. Judicial Commissioners.

The express designation by this section of a judicial commissioner as a magistrate indicates legislative intent that such commissioners be deemed “magistrates” rather than “courts.” State v. Bush, 626 S.W.2d 470, 1981 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. 1981).

Even if the judicial commissioner enabling statute were unconstitutional, the good faith exception to the exclusionary rule applied where the officer objectively and reasonably believed the judicial commissioner had the authority to issue a warrant and the officer engaged in no misconduct; in addition, the deterrent purpose of the exclusionary rule would not be advanced by punishing the officer for reasonably relying on the authority of the commissioner to issue a search warrant. United States v. Pennington, 115 F. Supp. 2d 910, 2000 U.S. Dist. LEXIS 14862 (W.D. Tenn. 2000).

2. Warrant Issued by Any Criminal Court.

A warrant may be issued by any court upon which criminal jurisdiction is conferred by law. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

Search of defendant's residence pursuant to a search warrant violated defendant's Fourth Amendment rights because the authorizing judge had no authority to issue a warrant for the county in which defendant's residence was located, pursuant to state law; remand was necessary to determine the applicability of the exclusionary rule. United States v. Master, 614 F.3d 236, 2010 FED App. 276P, 2010 U.S. App. LEXIS 18133 (6th Cir. Aug. 31, 2010).

40-5-103. Examination required before commitment.

No person can be committed to prison for any criminal matter until examination thereof is first had before some magistrate.

Code 1858, § 5017 (deriv. Acts 1715, ch. 16, § 1); Shan., § 6976; Code 1932, § 11515; T.C.A. (orig. ed.), § 40-604.

Cross-References. Preliminary examination, title 40, ch. 10.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 19.63.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 3, 6; 8 Tenn. Juris., Criminal Procedure, § 19.

Law Reviews.

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

NOTES TO DECISIONS

1. In General.

While this is not a “preliminary hearing” in the sense contemplated by title 40, ch. 10, it is a statutorily mandated preliminary type examination before a committing magistrate. State v. Mitchell, 593 S.W.2d 280, 1980 Tenn. LEXIS 395 (Tenn. 1980), cert. denied, Mitchell v. Tennessee, 449 U.S. 845, 101 S. Ct. 128, 66 L. Ed. 2d 53, 1980 U.S. LEXIS 2905 (1980).

2. Strict Observance.

The courts of Tennessee exact scrupulous observance of this prohibition by its law officers. State ex rel. Morris v. National Surety Co., 162 Tenn. 547, 39 S.W.2d 581, 1930 Tenn. LEXIS 122 (1931); Polk v. State, 170 Tenn. 270, 94 S.W.2d 394, 1936 Tenn. LEXIS 12 (1936); Anderson v. United States, 318 U.S. 350, 63 S. Ct. 599, 87 L. Ed. 829, 1943 U.S. LEXIS 915 (1943).

3. Construction with Other Acts.

Former statute providing that a husband pleading not guilty before a juvenile court judge on a charge of nonsupport was to be bound over under bond for the action of the grand jury was constitutional when read in the light of this section. Moye v. State, 139 Tenn. 680, 202 S.W. 919, 1917 Tenn. LEXIS 137 (1917).

4. Temporary Holding.

A temporary holding or arrest for examination purposes is not a committal to prison within the spirit of this section. Wynn v. State, 181 Tenn. 325, 181 S.W.2d 332, 1944 Tenn. LEXIS 395 (1944).

Failure of officers to take defendant accused of larceny immediately before a magistrate, delaying approximately one day, where no confession or mistreatment was involved, was not unconstitutional and would not justify reversal of conviction since no provision expressly requires officers to so act. East v. State, 197 Tenn. 644, 277 S.W.2d 361, 1955 Tenn. LEXIS 330 (1955).

A suspect may be temporarily held by police officers before he is taken before a magistrate. Hardin v. State, 1962 Tenn. 399, 210 Tenn. 116, 355 S.W.2d 105, 1962 Tenn. LEXIS 399 (1962), rehearing denied, 210 Tenn. 116, 356 S.W.2d 595, 1962 Tenn. LEXIS 416 (1962); Van Zandt v. State, 218 Tenn. 187, 402 S.W.2d 130, 1966 Tenn. LEXIS 637 (1966).

Holding a prisoner two days prior to taking him before a committing magistrate or prior to arraignment did not violate this section or constitutional due process. State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310, 1966 Tenn. LEXIS 640 (1966).

The holding of a person in custody by state officers for 48 hours or more without preliminary examination by a magistrate did not violate either this section or constitutional due process. Ramsey v. Haun, 296 F. Supp. 307, 1969 U.S. Dist. LEXIS 10433 (E.D. Tenn. 1969).

This statute does not prevent a temporary holding without a mittimus. State v. Mitchell, 593 S.W.2d 280, 1980 Tenn. LEXIS 395 (Tenn. 1980), cert. denied, Mitchell v. Tennessee, 449 U.S. 845, 101 S. Ct. 128, 66 L. Ed. 2d 53, 1980 U.S. LEXIS 2905 (1980).

T.C.A. § 40-5-103 does not create an expectation of release for someone who has been arrested and therefore cannot create a protected liberty interest in being released on bail. Fields v. Henry County, 701 F.3d 180, 2012 U.S. App. LEXIS 25159, 2012 FED App. 403P (6th Cir. 2012).

5. —Questioning.

It was a violation of this section for state officers to hold defendants for six days of questioning, during which defendants saw neither friends, relatives, nor counsel, in hostile atmosphere of a small, company dominated mining town. Anderson v. United States, 318 U.S. 350, 63 S. Ct. 599, 87 L. Ed. 829, 1943 U.S. LEXIS 915 (1943).

This section does not prohibit the holding of an accused for questioning before taking him before a committing magistrate or before arraignment. State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310, 1966 Tenn. LEXIS 640 (1966); State ex rel. Leighton v. Henderson, 1 Tenn. Crim. App. 598, 448 S.W.2d 82, 1969 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. 1969).

6. —Admissibility of Confession.

The bare detention for investigation of a defendant for 72 hours before taking him into the magistrate's court was not sufficient to render his confession inadmissible. Wynn v. State, 181 Tenn. 325, 181 S.W.2d 332, 1944 Tenn. LEXIS 395 (1944).

Detention of defendant for three days before he confessed telephone thefts to telephone company employee did not render such confession inadmissible where defendant had been advised of his right to counsel and there was no evidence of mistreatment. Van Zandt v. State, 218 Tenn. 187, 402 S.W.2d 130, 1966 Tenn. LEXIS 637 (1966).

“Unreasonable delay” is one factor to be taken into account in evaluating the voluntariness of a confession; and if the totality of the surrounding circumstances indicates that a confession was voluntarily given, it shall not be excluded from evidence solely because of delay in carrying the confessor before a magistrate. State v. Readus, 764 S.W.2d 770, 1988 Tenn. Crim. App. LEXIS 694 (Tenn. Crim. App. 1988).

7. —Magistrate Not Immediately Available.

If because of the hour of night when an arrest is made, or other cause, a magistrate is not available, an officer may lawfully place his prisoner in jail until he can be carried before a magistrate for examination. State ex rel. Morris v. National Surety Co., 162 Tenn. 547, 39 S.W.2d 581, 1930 Tenn. LEXIS 122 (1931).

8. Offense in Magistrate's Presence.

A magistrate may order the arrest of anyone for an offense committed in his presence, but he has no power to commit him to prison without an examination or hearing. Touhey v. King, 77 Tenn. 422, 1882 Tenn. LEXIS 78 (1882).

9. Bond.

The arresting officer has no power to take a bail bond before trial or examination and commitment and if he takes such bond, it is a nullity, and the sureties thereon are not bound. State v. McCoy, 60 Tenn. 111, 1873 Tenn. LEXIS 422 (1873).

If the hearing be continued for good cause, the offender may give bail in a bailable case, but if the case is not bailable or if he fails or refuses to give bail he may be committed to prison. Touhey v. King, 77 Tenn. 422, 1882 Tenn. LEXIS 78 (1882).

Neither sheriff nor his purported agent had authority to take bail before commitment of prisoner and taking of bail under these circumstances was irregular and void. Columbia Bonding Co. v. State, 225 Tenn. 719, 476 S.W.2d 633, 1972 Tenn. LEXIS 306 (1972).

40-5-104. Subpoena of witnesses.

The magistrate before whom an information is made may issue subpoenas to any part of the state for witnesses on behalf of either the defendant or the state.

Code 1858, § 5380 (deriv. Acts 1822, ch. 40, § 1); Shan., § 7358; Code 1932, § 11963; T.C.A. (orig. ed.), § 40-605.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.10.

NOTES TO DECISIONS

1. Insurance Commissioner Calling Witnesses.

The power to summon witnesses under this section extends to witnesses in any part of the state. Rhinehart v. State, 121 Tenn. 420, 117 S.W. 508, 1908 Tenn. LEXIS 28 (1908).

40-5-105. Disposition by magistrate.

The magistrate is required to reduce the examination of the accused to writing, if the accused submits to an examination, and also all the evidence adduced on both sides, and is authorized to discharge, bail, or commit the accused and to take all necessary recognizances to enforce the appearance of the defendant, the prosecutor or witnesses at the proper court.

Code 1858, § 5018 (deriv. Acts 1715, ch. 16, § 1); Shan., § 6977; Code 1932, § 11516; T.C.A. (orig. ed.), § 40-606.

Cross-References. Admission to bail, title 40, ch. 11, part 1.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 20.

Law Reviews.

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

NOTES TO DECISIONS

1. Waiver of Examination.

A party charged with murder has the right to waive an examination before a committing court, and it is not, by law, made the duty of the magistrate in such case to examine the witnesses and reduce their testimony to writing, because this is waived by the waiver of the examination. State v. Miller, 69 Tenn. 596, 1878 Tenn. LEXIS 143 (1878).

2. Burden at Hearing.

At the examination in a case, prior to indictment, the burden to show right of custody of accused is on the state, aided by no presumption. Shaw v. State, 164 Tenn. 192, 47 S.W.2d 92, 1932 Tenn. LEXIS 2 (1932).

3. Confession Before Magistrate — Admissibility.

If a prisoner is cautioned by the examining magistrate and warned that the evidence may be used against him, a confession made and reduced to writing by the magistrate may be read in evidence against the prisoner upon his trial, subject to being impeached, however, as is other evidence. Alfred v. State, 32 Tenn. 581, 1853 Tenn. LEXIS 86 (1853).

4. Record as Evidence in Defendant's Favor.

The examination of a prisoner by the magistrate before whom he is brought for commitment, being a privilege extended to the prisoner so that he is thus “allowed to speak for himself,” the record of such examination cannot afterwards be used by him at the trial as evidence in his defense. Nelson v. State, 32 Tenn. 237, 1852 Tenn. LEXIS 58 (1852); Alfred v. State, 32 Tenn. 581, 1853 Tenn. LEXIS 86 (1853).

5. Testimony of Witnesses — Use for Impeachment.

The record of the evidence of witnesses before an examining magistrate can only be used upon the trial for the purpose of discrediting witnesses, and then only when the witness is questioned as to what he stated before the magistrate. Nelson v. State, 32 Tenn. 237, 1852 Tenn. LEXIS 58 (1852).

6. Mandamus to Compel Examination.

Mandamus is not the proper remedy for refusal of the magistrate to examine the witnesses and reduce their testimony to writing, even if by law he was required to do so. State v. Miller, 69 Tenn. 596, 1878 Tenn. LEXIS 143 (1878); North British & Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, 1900 Tenn. LEXIS 197 (1901); State ex rel. Lyle v. Willett, 117 Tenn. 334, 97 S.W. 299, 1906 Tenn. LEXIS 51 (1906); State ex rel. Spratlin v. Thompson, 118 Tenn. 571, 102 S.W. 349, 1907 Tenn. LEXIS 65, 20 L.R.A. (n.s.) 1 (1907).

40-5-106. Officials prohibited from issuing warrants.

No search warrant, arrest warrant or mittimus shall be issued by any state, city or county officer whose compensation is contingent in any manner upon the issuance or nonissuance of a search warrant, arrest warrant or mittimus.

Acts 1978, ch. 933, § 5; T.C.A., § 40-607.

Cross-References. Issuance of warrants, title 40, ch. 6.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.6, 18.81.

Part 2
Judicial Commissioners

40-5-201. Creation of position — Duties.

  1. The legislative body of any county having a metropolitan form of government may, by ordinance, create the position of one (1) or more judicial commissioners.
  2. The duties of the commissioner or commissioners include, but are not limited to, the following:
    1. The issuance of arrest warrants upon a finding of probable cause;
    2. The setting of bonds and recognizances in accordance with the procedures outlined in this chapter and chapter 6 of this title; and
    3. The issuance of mittimus following compliance with the procedures prescribed by § 40-5-103.
  3. The legislative body of any county having a population of not less than twenty-one thousand five hundred (21,500) nor more than twenty-one thousand seven hundred (21,700), according to the 1980 federal census or any subsequent federal census, may, by resolution, create the position of one (1) or more judicial commissioners pursuant to this part.

Acts 1983, ch. 86, § 1; 1986, ch. 901, § 1.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Judicial commissioners, general provisions, § 40-1-111.

40-5-202. Term of office — Eligibility for appointment.

The term or terms of the judicial commissioner or commissioners shall be established by the majority of general sessions judges of the county and in no event shall the term or terms exceed four (4) years. No employee, officer or official of the metropolitan government shall be eligible for appointment or serve as a judicial commissioner.

Acts 1983, ch. 86, § 1.

40-5-203. Compensation and fees.

The judicial commissioner or commissioners shall be compensated from the general fund of the county in an amount to be determined by the majority of general sessions judges of the county and subject to the approval of the legislative body. Fees established and authorized by § 8-21-401 shall be paid to the general fund upon the services detailed in § 8-21-401 being performed by a judicial commissioner.

Acts 1983, ch. 86, § 1.

40-5-204. Appointment.

The judicial commissioner or commissioners shall be appointed by a majority of the general sessions judges in the county and serve at the pleasure of the majority of the general sessions judges.

Acts 1983, ch. 86, § 1.

Chapter 6
Warrants

Part 1
Search Warrants

40-6-101. “Search warrant” defined.

A search warrant is an order in writing in the name of the state, signed by a magistrate, directed to the sheriff, any constable, or any peace officer of the county, commanding the sheriff, constable or peace officer to search for personal property, and bring it before the magistrate.

Code 1932, § 11897; T.C.A. (orig. ed.), § 40-501.

Cross-References. Definition of magistrate, §§ 40-1-106, 40-5-101.

Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 18.80, 18.89, 18.108.

Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, § 28; 22 Tenn. Juris., Searches and Seizures, §§ 2, 3.

Law Reviews.

Search and Seizure — Tennessee Concepts, 22 Tenn. L. Rev. 527.

NOTES TO DECISIONS

1. Issuance to Peace Officer.

Section 40-6-105 authorizes the magistrate to issue the warrant to any “peace officer” without the restriction “of the county” contained in this section. Vickers v. State, 176 Tenn. 415, 142 S.W.2d 188, 1939 Tenn. LEXIS 132 (1940).

The class of persons to whom a warrant must be physically issued is not restricted. State v. Pigford, 572 S.W.2d 921, 1978 Tenn. LEXIS 664 (Tenn. 1978).

2. Security Guards.

A state's regulation of security guards through licensing does not convert their every action into that of the state. State v. Hutson, 649 S.W.2d 6, 1982 Tenn. Crim. App. LEXIS 485 (Tenn. Crim. App. 1982).

3. Magistrate.

Under T.C.A. § 40-5-102, magistrates are defined to include judicial commissioners. United States v. Pennington, 115 F. Supp. 2d 910, 2000 U.S. Dist. LEXIS 14862 (W.D. Tenn. 2000).

Magistrate did not have authority to issue search warrants for defendants'  homes because the magistrate issued the warrants for property located outside his judicial district; because the magistrate, who was a circuit court judge, did not have the authority to issue the search warrants for defendants'  homes located outside of his district, the search warrants were void ab initio, and the searches of defendants'  homes were unconstitutional. State v. Frazier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Sept. 25, 2017), aff'd, — S.W.3d —, 2018 Tenn. LEXIS 537 (Tenn. Sept. 26, 2018).

40-6-102. Grounds for issuance.

A search warrant may be issued on any one (1) of the following grounds:

  1. Where the property was stolen or embezzled;
  2. Where the property was used as the means of committing a felony;
  3. Where the property is in the possession of any person with the intent to use it as a means of committing a public offense, or in the possession of another to whom the person may have delivered it, for the purpose of concealing it, or preventing its discovery; and
  4. Any other ground provided by law.

Code 1858, § 5318; Shan.,§ 7296; mod. Code 1932, § 11898; T.C.A. (orig. ed.), § 40-502.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.80.

Law Reviews.

Search and Seizure Problems (E. C. Arnold), 16 Tenn. L. Rev. 291.

NOTES TO DECISIONS

1. Sufficiency of Affidavit.

An affidavit made by a police officer and based on information of a “a reliable citizen,” wherein the only fact, according to the affidavit, which informant disclosed was that he saw “a quantity of intoxicating liquor” on defendant's premises was held insufficient, under subdivision (3), to justify issuance of a warrant. King v. State, 174 S.W.2d 463, 1943 Tenn. LEXIS 52 (Tenn. 1943).

Where affidavit was based upon information given by a reliable informer stating that marijuana was being stored in defendant's residence, it was sufficient to justify a search warrant. Woods v. State, 552 S.W.2d 782, 1977 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. 1977), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

2. Neutral Magistrate to Issue Warrant.

Search warrant met standard that it be issued by a neutral and detached magistrate. United States v. Finch, 998 F.2d 349, 1993 U.S. App. LEXIS 16174 (6th Cir. Tenn. 1993).

Even if the judicial commissioner enabling statute were unconstitutional, when an officer acting with objective good faith, has obtained a search warrant from a detached and neutral magistrate and has acted within its scope, the results of the search are normally not suppressed even if the affidavit is later found to be insufficient to establish probable cause, unless the magistrate abandoned the detached and neutral role of that office, or the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. United States v. Pennington, 115 F. Supp. 2d 910, 2000 U.S. Dist. LEXIS 14862 (W.D. Tenn. 2000).

40-6-103. Probable cause and affidavit.

A search warrant can only be issued on probable cause, supported by affidavit, naming or describing the person, and particularly describing the property, and the place to be searched.

Code 1858, § 5319; Shan., § 7297; Code 1932, § 11899; T.C.A. (orig. ed.), § 40-503.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, §§ 22, 27, 28; 22 Tenn. Juris., Searches and Seizures, § 5.

Law Reviews.

Search and Seizure — Sufficiency of Description in Warrant for Search of Automobile, 34 Tenn. L. Rev. 525.

NOTES TO DECISIONS

1. In General.

For a search warrant to issue, evidence of the fact committed, or probable cause for believing its existence, must be presented to a magistrate, reduced to writing, and subscribed by the person who conveys the information, and the magistrate, in the exercise of his judicial discretion, must determine that such evidence is sufficient. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

An affidavit is an indispensable prerequisite to the issuance of a search warrant. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

Reference in the affidavit to a confidential informant as an agent, alone, was insufficient to establish that the informant was a law enforcement officer whose information was considered reliable; the information in the affidavit otherwise failed to establish probable cause for issuance of the search warrant; the corroboration involved only one element of non-suspect behavior and offered little support to the credibility of the informant or the reliability of the informant's information regarding the occurrence of drug transactions at defendant's residence. State v. Smotherman, 201 S.W.3d 657, 2006 Tenn. LEXIS 691 (Tenn. 2006).

2. Probable Cause.

Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty of the offense charged. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 1944 Tenn. LEXIS 383 (1944).

Information on affidavit about defendant selling drugs two months earlier was too stale, standing alone, to establish probable cause; however, it may be considered in conjunction with current information contained in the affidavit. State v. Starks, 658 S.W.2d 544, 1983 Tenn. Crim. App. LEXIS 410 (Tenn. Crim. App. 1983).

Probable cause to support the issuance of a search warrant must appear in an affidavit, and judicial review of the existence of probable cause will not include looking to other evidence provided to or known by the issuing magistrate or possessed by the affiant. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

Trial court did not err by denying defendant's motion to suppress the evidence obtained via the search warrant because the affidavit contained sufficient information to conclude that there was a fair probability that contraband or evidence of a crime would be found in defendant's residence, as the affidavit stated that officers were looking for a .30-06 rifle with a scope and the ammunition for such a rifle, that the defendant's grandfather reported having given the defendant such a gun approximately one week before the victim's murder. State v. Parker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 25, 2019).

3. —False Statement.

Although one statement of probable cause in affidavit was false and it could be stated that the affiant was reckless in making it, where there were other statements of probable cause in affidavit which were valid, motion to suppress was properly overruled. State v. Tidmore, 604 S.W.2d 879, 1980 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. 1980).

False statement recklessly made rendered search warrant affidavit insufficient. State v. Longstreet, 619 S.W.2d 97, 1981 Tenn. LEXIS 454 (Tenn. 1981), overruled in part, State v. Leveye, 796 S.W.2d 948, 1990 Tenn. LEXIS 325 (Tenn. 1990).

Although the statement in the affidavit that defendant fled to his residence was incorrect, no evidence showed that the statement was intended to deceive the judicial magistrate or that the statement was a basis for probable cause; the probable cause to support the warrant was based upon the deputies'  observing contraband in plain view, not whether defendant was seen running to his home after the shooting, and thus the warrant was valid and the evidence properly seized. State v. Johnson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. May 4, 2016).

4. Affidavit — Sufficiency.

Affidavit of policeman for warrant was sufficient where he swore that he had seen empty whiskey bottles and smelled whiskey when he was in the house to be searched, that whiskey had been found at the same house on a prior occasion, that the house was a known bootlegging joint, and that he had seen one of the occupants of the house with whiskey earlier in the day. Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924).

If the affidavit for a search warrant is regular on its face showing that there was material evidence before the magistrate supporting his action, then such action is not subject to review except for fraud or collusion. Solomon v. State, 203 Tenn. 583, 315 S.W.2d 99, 1958 Tenn. LEXIS 335 (1958), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978); Woods v. State, 552 S.W.2d 782, 1977 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. 1977), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

The nearer the time of gaining of the information to the time of application for the search warrant, the more effective it is to justify the conclusion of probable cause. Franklin v. State, 1 Tenn. Crim. App. 248, 437 S.W.2d 260, 1968 Tenn. Crim. App. LEXIS 121 (Tenn. Crim. App. 1968).

For probable cause to be established and the supporting affidavit to be sufficient it is not necessary to link up particular facts with particular sources of information, or with any source of information, as long as it is stated that the facts are from a reliable source or from personal knowledge of the affiant. Anderson v. State, 512 S.W.2d 665, 1974 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1974), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

The affidavit in a search warrant may not be impeached since the magistrate determined the verity of facts before he issued the warrant, and such judicial act is not subject to review unless there were no material facts upon which the magistrate based his discretion. Ellis v. State, 544 S.W.2d 908, 1976 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. 1976).

Where the affidavit to the search warrant recounts the personal observations of a reliable informant stating that he had been in defendants' residence within three days and had seen the defendants selling and storing marihuana, the affidavit is sufficient. Armstrong v. State, 548 S.W.2d 334, 1976 Tenn. Crim. App. LEXIS 330 (Tenn. Crim. App. 1976).

Use of information from confidential informant on search warrant affidavit was permissible where credibility and reliability of informant were established by prior history of information leading to several arrests and convictions, and information had never been false. State v. Starks, 658 S.W.2d 544, 1983 Tenn. Crim. App. LEXIS 410 (Tenn. Crim. App. 1983).

Before a search warrant may be issued based upon an informant's information, an affiant must make sufficient disclosure of the events, activities, or allegations which have been corroborated in order that a magistrate may make a neutral and detached determination that an informant is credible or that his information is reliable. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

Affidavit failed to reflect that informant was credible or that his information was reliable; therefore, search warrant was not issued upon probable cause and any evidence obtained as a result of the search pursuant to the warrant should have been suppressed. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

The Tennessee supreme court has adopted the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, 1964 U.S. LEXIS 994 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637, 1969 U.S. LEXIS 2701 (1969), to determine the adequacy of the affidavit upon which a search warrant is based. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

It is incumbent upon whoever seeks a search warrant to include in the affidavit whether the informational source, named or confidential, qualifies as a citizen or professional informant in order to allow the issuing magistrate to apply the proper constitutional common-law standard, and where the affidavit did not more adequately set out informant's professional status, it was insufficient. State v. Smith, 867 S.W.2d 343, 1993 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. 1993).

In determining the sufficiency of the description of the items to be seized, the description given in the warrant is not the only one to be considered: by the express reference to and incorporation of the affidavit, the warrant may be validated by the description of the items to be seized contained in the affidavit. State v. Meeks, 867 S.W.2d 361, 1993 Tenn. Crim. App. LEXIS 503 (Tenn. Crim. App. 1993), cert. denied, Meeks v. Tennessee, 510 U.S. 1168, 114 S. Ct. 1200, 127 L. Ed. 2d 548, 1994 U.S. LEXIS 1998 (1994).

Exigent circumstances existed which justified the issuance of a “no knock” warrant because defendant had drugs inside his house, the residence was equipped with a surveillance system, and any evidence could be destroyed quickly due to defendant's ability to monitor the activity outside the residence. State v. Perry, 178 S.W.3d 739, 2005 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 717 (Tenn. Aug. 22, 2005).

Suppression motion was properly denied under Tenn. Const. art. I, § 7 where: (1) the search warrant affidavit under T.C.A. § 40-6-103 and Tenn. R. Crim. P. 41(c) met the Aguilar-Spinelli/Jacumin  test by stating that a confidential informant (CI) had given information on narcotics trafficking resulting in several seizures of cocaine and marijuana and several felony narcotics arrests for cocaine and marijuana; (2) a specific number of seizures and arrests was not required; and (3) a specific number requirement for establishing the CI's credibility would have constituted a hyper-technical application of the Aguilar-Spinelli  test. State v. Sales, 393 S.W.3d 236, 2012 Tenn. Crim. App. LEXIS 845 (Tenn. Crim. App. Oct. 17, 2012).

Trial court erred by granting defendant's motion to suppress the blood test results because a clerical error in the search warrant affidavit did not invalidate the warrant, as the one instance of an inconsistent name in the affidavit when there were five other correct references to defendant by name did not void the warrant. State v. Szabo, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. Oct. 6, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 141 (Tenn. Feb. 21, 2017).

Trial court did not err in denying defendant's motion to suppress the evidence obtained from the search of his house, because the officer intended to obtain a valid search warrant, reasonably believed that the warrant, based on probable cause and issued by a neutral and detached magistrate, was valid, and immediately stopped the search and obtained a second warrant supported by a properly signed affidavit, as required by statute and the criminal rules, once he learned of the problem. State v. Davidson, 509 S.W.3d 156, 2016 Tenn. LEXIS 913 (Tenn. Dec. 19, 2016), cert. denied, Davidson v. Tennessee, 199 L. Ed. 2d 66, 138 S. Ct. 105, 2017 U.S. LEXIS 5551 (U.S. Oct. 2, 2017).

5. —Information and Belief.

It is not necessary that affiant should have personal knowledge of the existence of grounds calling for a search warrant, but such warrant may be based on an affidavit made on information if it discloses the nature and source of the information so that the magistrate himself can determine whether probable cause exists. Elliott v. State, 148 Tenn. 414, 256 S.W. 431, 1923 Tenn. LEXIS 29 (1923); Jackson v. State, 153 Tenn. 431, 284 S.W. 356, 1925 Tenn. LEXIS 40 (1926); Smith v. State, 169 Tenn. 633, 90 S.W.2d 523, 1935 Tenn. LEXIS 90 (1936).

A search warrant based on a sheriff's affidavit, made on information and belief, that probable cause exists to justify the writ, without setting out the character of the information, is void, under Tenn. Const., art. I, § 7. Cravens v. State, 148 Tenn. 517, 256 S.W. 431, 1923 Tenn. LEXIS 41 (1923).

Affidavit for search warrant based on knowledge was insufficient where it failed to set forth facts. Jackson v. State, 153 Tenn. 431, 284 S.W. 356, 1925 Tenn. LEXIS 40 (1926).

Affidavit made on information and belief need not set out name of affiant's informant, though it must state the nature of the information given to affiant. Jackson v. State, 153 Tenn. 431, 284 S.W. 356, 1925 Tenn. LEXIS 40 (1926).

Affidavit, although containing some conclusions of the informer, which made direct observations of large numbers of people entering and leaving house together with the personal knowledge of the informer of defendant's reputation as a professional gambler, was sufficient. Owens v. State, 217 Tenn. 544, 399 S.W.2d 507, 1965 Tenn. LEXIS 652 (1965).

Where affidavit was based upon information given by a reliable informer stating that marijuana was being stored in defendant's residence, it was sufficient to justify a search warrant. Woods v. State, 552 S.W.2d 782, 1977 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. 1977), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

Where a police officer made out an affidavit on the basis of information supplied by a reliable informant who claimed to have purchased drugs from defendant, the fact that other officers were working on the case as undercover agents and had also purchased drugs from defendant was not evidence of fraud or collusion among the officers to obtain the search warrant. Moore v. State, 568 S.W.2d 632, 1978 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. 1978).

The police officer affiant established the reliability of information by reference to three prior, successful investigations. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

6. —Date.

A search warrant issued on affidavit bearing later date than the warrant is void, rendering inadmissible evidence obtained as result of the search made. Harvey v. State, 166 Tenn. 227, 60 S.W.2d 420, 1933 Tenn. LEXIS 86 (1933).

A search warrant for unlawful possession of intoxicating liquor, issued upon an affidavit which did not set out date of defendant's unlawful possession, was fatally defective, and the admission of evidence obtained thereunder was reversible error. Welchance v. State, 173 Tenn. 26, 114 S.W.2d 781, 1937 Tenn. LEXIS 8 (1938).

Where police captain testified that he received information on September 20 as to violation of injunction against liquor sales and on same day signed affidavit before municipal judge who attested the execution of the affidavit by his jurat but failed to insert the date of it in the blank spaces and where the form that contained the affidavit also contained the search warrant which was dated September 20 and the return thereof was also dated September 20, the evidence conclusively established that the entire transaction took place on September 20 and the failure to fill in the date on the affidavit did not invalidate the warrant. State ex rel. Blackburn v. Fox, 200 Tenn. 227, 292 S.W.2d 21, 1956 Tenn. LEXIS 399 (1956).

It is from the contents of the affidavit that the magistrate determines the existence of probable cause and not the date on which the affiant made his oath. State ex rel. Blackburn v. Fox, 200 Tenn. 227, 292 S.W.2d 21, 1956 Tenn. LEXIS 399 (1956).

The interval of 17 days between the giving of information to the officer in his investigation and the issuance of the warrant did not preclude a finding of probable cause by the general sessions judge. Franklin v. State, 1 Tenn. Crim. App. 248, 437 S.W.2d 260, 1968 Tenn. Crim. App. LEXIS 121 (Tenn. Crim. App. 1968).

Absence of a specific date in the warrant as to when the crimes occurred did not make the warrant invalid, as the affidavit accompanying the search warrant contained information that alleged illegal activity that was of a continuing nature, such that a specific date as to when the illegal activity was observed was not necessary. State v. McCary, 119 S.W.3d 226, 2003 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 674 (Tenn. July 7, 2003).

7. —John Doe Alias Warrants.

An alias warrant was sufficient although the affiant knew the defendant's name, where the warrant authorized the search of only the premises and not the person of the defendant. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

8. —Collateral Attack.

Whether or not probable cause exists is a matter of judicial discretion, and when a warrant is issued, on an affidavit regular on its face, it may not be attacked collaterally by objection to the admission of evidence obtained thereby. Gallimore v. State, 173 Tenn. 178, 116 S.W.2d 1001, 1938 Tenn. LEXIS 5 (1938), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

In order to attack the veracity of a facially sufficient affidavit, the defendant must initially show by affidavit of persons having personal knowledge of the facts, or other evidence, that the search warrant was procured by the officers either through perjury or collusion. Woods v. State, 552 S.W.2d 782, 1977 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. 1977), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

Where a hearing was held in the trial court on defendant's motion to suppress evidence obtained pursuant to a search warrant issued on the basis of allegedly false statements, and where the state made no objection at such time, but contended on appeal that defendant's motion should have been dismissed without a hearing for the reason that a facially sufficient affidavit cannot be attacked, absent a preliminary showing by affidavit that the search warrant was fraudulently obtained, the court held that once it had come to its attention through the record of the hearing that the entire substance of the probable cause elements of the affidavit were false and that the false statements were knowingly made it was required to affirm the judgment granting defendant's motion. State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

9. Description of Place.

The information presented to the magistrate in the affidavit for the issuance of a search warrant is not a part of the warrant, but evidence upon which the magistrate must determine whether or not the warrant should be issued. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

Search warrant issued by a city judge, giving the name and street number of defendant, but omitting in its body the name of the city, county, or state, was sufficient, where such omissions were covered by the heading. Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924).

Definite reference to a street number in a given city and state meets the requirement for particular description of the place to be searched, but where there are two streets in the same city with identical names and numbers, or a number of occupants in possession of different rooms or different apartments at the particular street number, reference to the street number is not a sufficient description. State v. Bass, 153 Tenn. 162, 281 S.W. 936, 1925 Tenn. LEXIS 15 (1926).

The requirement of particular description of the place to be searched is met by a description which particularly points to a definitely ascertainable place so as to exclude all others, and enable the officer to locate the place to be searched with reasonable certainty without leaving it to his discretion. State v. Bass, 153 Tenn. 162, 281 S.W. 936, 1925 Tenn. LEXIS 15 (1926); Hatchett v. State, 208 Tenn. 399, 346 S.W.2d 258, 1961 Tenn. LEXIS 298 (1961).

A warrant authorizing search of a “frame building” located at the premises known as 2706 Cowart Street authorized search of a coalhouse located within three feet of the main building, and which was also marked with the number “2706,” the outhouse being appurtenant to and a part of the premises described. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

A search warrant properly describing the premises to be searched was not defective as to the search of such premises merely for failure to name the owner of the premises, though it would be defective as to search of his person. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

Warrant describing premises to be searched as 2706 “Coward” Street instead of 2706 “Cowart” Street was sufficient where there was no street in the city named “Coward” and the affidavit attached to the warrant gave the correct name of the street, the two names being idem sonans. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

The place to be searched should “be designated with sufficient accuracy to prevent the officer from searching the premises of one person under a warrant directed against those of another.” Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 1944 Tenn. LEXIS 383 (1944).

The search warrant must be clear of ambiguity as to the place to be searched. Dolen v. State, 187 Tenn. 663, 216 S.W.2d 351, 1948 Tenn. LEXIS 481 (1948).

If warrant does not describe the premises in a sufficient manner it cannot be corrected by description appearing in affidavit though both warrant and affidavit are on one printed instrument. Minton v. State, 186 Tenn. 541, 212 S.W.2d 373, 1948 Tenn. LEXIS 577 (1948).

Search warrant adjudging that offenses of unlawful possession of gambling devices and gambling were being committed by “John Doe, alias” on premises described as “1476½ Market Street” which was the upstairs over the Paris Cafe validly authorized search of rooms occupied by defendant at that address though there were other rooms at the same address occupied by another person. Renner v. State, 187 Tenn. 647, 216 S.W.2d 345, 1948 Tenn. LEXIS 479 (1948).

Search warrant was defective which failed to set forth any facts from which a reasonable conclusion might have been drawn that the evidence was in the place to be searched. State v. Longstreet, 619 S.W.2d 97, 1981 Tenn. LEXIS 454 (Tenn. 1981), overruled in part, State v. Leveye, 796 S.W.2d 948, 1990 Tenn. LEXIS 325 (Tenn. 1990).

A search warrant directed against a multiunit dwelling is invalid unless it describes the subunit intended to be searched with sufficient definiteness to exclude the search of an unintended subunit. State v. Stinnett, 629 S.W.2d 1, 1982 Tenn. LEXIS 386 (Tenn. 1982).

In cases where the police are understandably misled into believing that a house was a single dwelling unit, the courts have recognized an exception to the rule that evidence must be suppressed if the search warrant did not specifically signify the subunit to be searched. State v. Stinnett, 629 S.W.2d 1, 1982 Tenn. LEXIS 386 (Tenn. 1982).

In determining the validity of a search warrant when an attack is made upon the description of the place to be searched, the court must determine whether or not it will enable an officer to locate the place to be searched with reasonable certainty. State v. Nunley, 675 S.W.2d 197, 1984 Tenn. Crim. App. LEXIS 2365 (Tenn. Crim. App. 1984).

Where directions stated in a warrant were essentially accurate, defendant was named therein and the affidavit stated that defendant resided in, occupied, or possessed property to be searched, the possibility of any ambiguity in the location of defendant's residence which might have arisen in the execution of the warrant was negated by officer's actual knowledge that the property was located, in fact, as described in the warrant. State v. Bostic, 898 S.W.2d 242, 1994 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 93 (Tenn. Mar. 6, 1995); State v. Conatser, 958 S.W.2d 357, 1997 Tenn. Crim. App. LEXIS 313 (Tenn. Crim. App. 1997).

The search warrant provided an adequate description of the residence where the warrant stated the address of the premises and described the color of the bricks, the color of the trim, the color of the mailbox and the presence of swimming pool behind a wooden fence in the back yard. State v. Vanderford, 980 S.W.2d 390, 1997 Tenn. Crim. App. LEXIS 1249 (Tenn. Crim. App. 1997).

Search warrant that identified the church's address in the warrant, along with defendant's office at the church as the area to be searched, met the particularity requirement, as while several buildings were located at the street address contained in the search warrant, all of the buildings comprised the church and did not qualify as premises “occupied by strangers.” State v. McCary, 119 S.W.3d 226, 2003 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 674 (Tenn. July 7, 2003).

10. —Vehicles on or Near Premises.

A warrant directing the search of a certain described parcel of real estate did not authorize the search of an automobile parked in front of that real estate, but outside its boundaries, on an adjoining road. Dolen v. State, 187 Tenn. 663, 216 S.W.2d 351, 1948 Tenn. LEXIS 481 (1948).

Although the affidavit did not state that whiskey was being possessed in vehicles on the premises described, nevertheless the command of the warrant that the premises described be searched did, as a matter of law, authorize a search of vehicles on those premises. Dolen v. State, 187 Tenn. 663, 216 S.W.2d 351, 1948 Tenn. LEXIS 481 (1948).

The general sessions judge did not exceed his authority in expressly inserting in the warrant a direction to search the vehicles on the premises, notwithstanding the fact that vehicles were not mentioned in the affidavit. Dolen v. State, 187 Tenn. 663, 216 S.W.2d 351, 1948 Tenn. LEXIS 481 (1948).

Search warrant authorizing search of premises of named individuals at specified address, including outbuildings and automobiles on the premises, did not include automobile of another person found on the premises, as such third person was a stranger to the process. State v. Sircy, 215 Tenn. 1, 383 S.W.2d 37, 1964 Tenn. LEXIS 534 (1964).

11. Description of Property.

A warrant must tell the officer what to search for, as well as where to search. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

Where an affidavit charged defendant with “handling, making, or selling whiskey,” and the warrant directed officers to search defendant's premises for “said articles,” the warrant was insufficient. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

Where intoxicating liquor is the object of search, a general description “intoxicating liquor” is a sufficient description of the thing for which search is to be made. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923); Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924).

A search warrant commanding search for “liquors” contains a sufficient description, for the word “liquor” is commonly used as meaning intoxicating liquor. Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924).

If the purpose of search is to seize not specified property, but any property of a specified character, which by reason of its character, and of the place where and the circumstances under which it may be found, if found at all would be illicit, a description as to such character, place and circumstances, would be unnecessary. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 1944 Tenn. LEXIS 383 (1944); Hackerman v. State, 189 Tenn. 130, 223 S.W.2d 194, 1949 Tenn. LEXIS 408 (1949).

Where the purpose of the search is to find specific property, it should be so particularly described as to preclude the possibility of seizing any other. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 1944 Tenn. LEXIS 383 (1944); Hackerman v. State, 189 Tenn. 130, 223 S.W.2d 194, 1949 Tenn. LEXIS 408 (1949).

Where gaming tickets were obtained under search warrants issued on May 13, such search warrants were not converted into unconstitutional general warrants by reason of the fact that warrants were served on May 14 and tickets seized were dated May 14 as evidence showed that a comprehensive plan or scheme of a continuous nature was involved making it unnecessary for the exact property specified in the warrant to be seized. Solomon v. State, 203 Tenn. 583, 315 S.W.2d 99, 1958 Tenn. LEXIS 335 (1958), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

Property to be seized must not only be described as “stolen” but referred to with specificity, e.g., “stereo tapes or players;” similarly, a search warrant must describe those items as contraband when they are illegal by virtue of the nature of the use. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

Use of the term “drugs,” instead of more specific description such as “marijuana,” was an insufficient basis for the issuance of a search warrant. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

Search warrant for defendant's home was not unconstitutionally broad where the items introduced into evidence at trial were described with sufficient particularity in the warrant as it provided a long list of items including and relating to the use and sale of controlled substances State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Trial court did not err by concluding that the warrant contained a sufficiently particular description of the place to be searched because the directions stated in the warrant were essentially accurate apart from the misnaming of a single cross street, both the detective and the investigator were familiar with the location of the mobile home park and the investigator knew specifically where defendant lived, and the warrant also contained the correct street address for defendant as confirmed by the booking record from his arrest shortly before the murder. State v. Parker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 25, 2019).

12. —Liquor.

The description in an affidavit as a “quantity of intoxicating liquors in possession in violation of law,” afforded the magistrate probable cause, or reasonable grounds, for believing that the intoxicating liquor referred to was not beer or wine, legally possessed, but whiskey, rum, brandy or gin illegal to possess. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 1944 Tenn. LEXIS 383 (1944).

13. Incorporation of Affidavit in Warrant.

The information presented to the magistrate in the affidavit is not a part of the warrant; it is the evidence upon which he must determine whether or not the warrant should be issued. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

Where definite reference to information in the affidavit is made in the warrant, the person executing the warrant may look to that part of the affidavit to strengthen the inadequacies of the warrant itself, although the warrant does not expressly incorporate the affidavit. Hackerman v. State, 189 Tenn. 130, 223 S.W.2d 194, 1949 Tenn. LEXIS 408 (1949).

An exact copy of the original affidavit was not required to be served on defendant, since, because there was no reference to the affidavit in the warrant, it was not part of the warrant, and there was no reason to hold it to the requirements of Tenn. R. Crim. P. 41(c). State v. Lowe, 949 S.W.2d 300, 1996 Tenn. Crim. App. LEXIS 575 (Tenn. Crim. App. 1996).

14. —Review.

Even though no statute exists to require the affidavits to be attached to the search warrant, if a previous affidavit is not referred to or incorporated in a search warrant or in its underlying affidavit, the previous affidavit is subject to being disregarded in the review process. State v. Smith, 836 S.W.2d 137, 1992 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1992).

40-6-104. Examination of complainant.

The magistrate, before issuing the warrant, shall examine on oath the complainant and any witness the complainant may produce, and take their affidavits in writing, and cause them to be subscribed by the persons making the affidavits. The affidavits must set forth facts tending to establish the grounds of the application, or probable cause for believing the grounds exist.

Code 1932, § 11900; T.C.A. (orig. ed.), § 40-504.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.84.

Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, § 27.

NOTES TO DECISIONS

1. Name of Informant.

It is a matter of judicial discretion whether or not an affidavit on information and belief shall state the name of affiant's informant, and such affidavit is sufficient if it shows that there was material evidence before the magistrate. Gallimore v. State, 173 Tenn. 178, 116 S.W.2d 1001, 1938 Tenn. LEXIS 5 (1938), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

2. Sufficient Disclosure.

Before a search warrant may be issued based upon an informant's information, an affiant must make sufficient disclosure of the events, activities, or allegations which have been corroborated in order that a magistrate may make a neutral and detached determination that an informant is credible or that his information is reliable. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

Reference in the affidavit to a confidential informant as an agent, alone, was insufficient to establish that the informant was a law enforcement officer whose information was considered reliable; the information in the affidavit otherwise failed to establish probable cause for issuance of the search warrant; the corroboration involved only one element of non-suspect behavior and offered little support to the credibility of the informant or the reliability of the informant's information regarding the occurrence of drug transactions at defendant's residence. State v. Smotherman, 201 S.W.3d 657, 2006 Tenn. LEXIS 691 (Tenn. 2006).

3. Affidavit Required.

Where affidavit of complainant was dated the day after the warrant was dated, the warrant was void because the magistrate lacked authority to issue it without the affidavit. State ex rel. Blackburn v. Fox, 200 Tenn. 227, 292 S.W.2d 21, 1956 Tenn. LEXIS 399 (1956).

Although it is preferable that every affidavit contain a completed jurat, an incomplete or defective jurat does not invalidate a warrant issued upon probable cause if it is proven by extrinsic evidence that the supporting affidavit was properly sworn by the affiant. State v. Keith, 978 S.W.2d 861, 1998 Tenn. LEXIS 521 (Tenn. 1998), rehearing denied, State v. Collins, — S.W.2d —, 1998 Tenn. LEXIS 701 (Tenn. Nov. 23, 1998).

Trial court did not err in denying defendant's motion to suppress the evidence obtained from the search of his house, because the officer intended to obtain a valid search warrant, reasonably believed that the warrant, based on probable cause and issued by a neutral and detached magistrate, was valid, and immediately stopped the search and obtained a second warrant supported by a properly signed affidavit, as required by statute and the criminal rules, once he learned of the problem. State v. Davidson, 509 S.W.3d 156, 2016 Tenn. LEXIS 913 (Tenn. Dec. 19, 2016), cert. denied, Davidson v. Tennessee, 199 L. Ed. 2d 66, 138 S. Ct. 105, 2017 U.S. LEXIS 5551 (U.S. Oct. 2, 2017).

4. Source of Information.

For probable cause to be established and the supporting affidavit to be sufficient it is not necessary to link up particular facts with particular sources of information, or with any source of information, as long as it is stated that the facts are from a reliable source or from the personal knowledge of the affiant. Anderson v. State, 512 S.W.2d 665, 1974 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1974), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

It is incumbent upon whoever seeks a search warrant to include in the affidavit whether the informational source, named or confidential, qualifies as a citizen or professional informant in order to allow the issuing magistrate to apply the proper constitutional common-law standard, and where the affidavit did not more adequately set out informant's professional status, it was insufficient. State v. Smith, 867 S.W.2d 343, 1993 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. 1993).

5. Probable Cause.

Central to all the requirements of Tenn. R. Crim. P. 41(c) and this section is the notion that probable cause must be supported by evidence submitted to the issuing magistrate and that evidence must be sufficient to support an independent and neutral judgment that probable cause exists. State v. Berry, 592 S.W.2d 553, 1980 Tenn. LEXIS 393 (Tenn. 1980), cert. denied, Tennessee v. Berry, 449 U.S. 887, 101 S. Ct. 241, 66 L. Ed. 2d 112, 1980 U.S. LEXIS 3403 (1980).

Probable cause to support the issuance of a search warrant must appear in an affidavit, and judicial review of the existence of probable cause will not include looking to other evidence provided to or known by the issuing magistrate or possessed by the affiant. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

Affidavit failed to reflect that informant was credible or that his information was reliable; therefore, search warrant was not issued upon probable cause and any evidence obtained as a result of the search pursuant to the warrant should have been suppressed. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

Generally, probable cause is a reasonable ground for suspicion, supported by circumstances indicative of an illegal act. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

Although the statement in the affidavit that defendant fled to his residence was incorrect, no evidence showed that the statement was intended to deceive the judicial magistrate or that the statement was a basis for probable cause; the probable cause to support the warrant was based upon the deputies'  observing contraband in plain view, not whether defendant was seen running to his home after the shooting, and thus the warrant was valid and the evidence properly seized. State v. Johnson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. May 4, 2016).

6. Review.

Even though no statute exists to require the affidavits to be attached to the search warrant, if a previous affidavit is not referred to or incorporated in a search warrant or in its underlying affidavit, the previous affidavit is subject to being disregarded in the review process. State v. Smith, 836 S.W.2d 137, 1992 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1992).

40-6-105. Issuance of warrant.

The magistrate, if satisfied of the existence of the grounds of the application, or that there is probable ground to believe their existence, shall issue a search warrant signed by the magistrate, directed to the sheriff, any constable or any peace officer, commanding the sheriff, constable or peace officer immediately to search the person or place named for the property specified, and to bring it before the magistrate.

Code 1858, § 5322; Shan., § 7300; mod. Code 1932, § 11901; T.C.A. (orig. ed.), § 40-505.

Cross-References. Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.84.

Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, §§ 27, 28; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 21; 22 Tenn. Juris., Searches and Seizures, § 6.

Attorney General Opinions. Magistrate may identify deficiencies in a warrant application or affidavit and inform a requesting officer what is needed to cure such deficiencies without abandoning his or her judicial role as a neutral and detached magistrate.   OAG 14-10, 2014 Tenn. AG LEXIS 11 (1/16/14).

NOTES TO DECISIONS

1. In General.

The search warrant must conform to Tenn. Const., art. I, § 7, and the statutory provisions directing procedure under the constitution. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

2. “Peace Officer” Defined.

The term “peace officer” as used in this section is a very comprehensive term embracing public officials of practically every class and position including judges of all degrees, policemen, mayors, aldermen, etc., whether county, municipal or state representatives. Vickers v. State, 176 Tenn. 415, 142 S.W.2d 188, 1939 Tenn. LEXIS 132 (1940).

Members of the state highway patrol are “peace officers” within the meaning of this section. Vickers v. State, 176 Tenn. 415, 142 S.W.2d 188, 1939 Tenn. LEXIS 132 (1940); Mullins v. State, 202 Tenn. 354, 304 S.W.2d 333, 1957 Tenn. LEXIS 398 (1957).

The class of persons to whom a warrant must be physically issued is not restricted. State v. Pigford, 572 S.W.2d 921, 1978 Tenn. LEXIS 664 (Tenn. 1978).

3. Authority to Issue Warrant.

Where person signing search warrant as “acting judge” of the general sessions court was not properly appointed under the law applicable to such court, such acting judge had no jurisdiction to issue the search warrant. Steadman v. State, 217 Tenn. 598, 399 S.W.2d 756, 1966 Tenn. LEXIS 614 (1966).

Where a federal law enforcement officer, accompanied by a county deputy sheriff, executed an affidavit for a search warrant; the warrant was addressed to the sheriff, any constable or any peace officer of the county; the federal officer later accompanied the deputy sheriff and two other deputy sheriffs when they executed the warrant; and the first deputy sheriff executed the return on the warrant, the search warrant was valid under this section. State v. Pigford, 572 S.W.2d 921, 1978 Tenn. LEXIS 664 (Tenn. 1978).

Magistrate did not have authority to issue search warrants for defendants'  homes because the magistrate issued the warrants for property located outside his judicial district; because the magistrate, who was a circuit court judge, did not have the authority to issue the search warrants for defendants'  homes located outside of his district, the search warrants were void ab initio, and the searches of defendants'  homes were unconstitutional. State v. Frazier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Sept. 25, 2017), aff'd, — S.W.3d —, 2018 Tenn. LEXIS 537 (Tenn. Sept. 26, 2018).

4. Issuance on Sunday.

A search warrant is criminal process, issuable on Sunday. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

5. Improper Return.

An improper return of the search warrant cannot negate the validity of an otherwise legal search. State v. Robinson, 622 S.W.2d 62, 1981 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. 1980), dismissed, LeMay v. Tennessee, 454 U.S. 1096, 102 S. Ct. 667, 70 L. Ed. 2d 636, 1981 U.S. LEXIS 2831 (1981).

6. Collateral Attack.

In a prosecution for the illegal possession of intoxicating liquors, the objection that the affidavit in the city court was not authenticated by that court as being the one upon which the search warrant issued is not reviewable in the supreme court, where it was admitted as genuine in the criminal court, and objection was not raised in motion for a new trial. Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924).

7. Review of Issuance.

The issuing magistrate determines the verity of the facts in the supporting affidavit before he issues the warrant and in so doing he performs a judicial act which is not subject to review unless his exercise of judicial discretion is based on no material facts. Anderson v. State, 512 S.W.2d 665, 1974 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1974), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

40-6-106. Form of warrant.

The warrant may be substantially in the following form:

State of Tennessee,

County of  .

To the sheriff or any constable of the county:

Proof by affidavit having been made before me by A. B., that (stating the particular grounds of the application; or, if the affidavits are not positive, “that there is probable cause for believing that,” stating the particular grounds of the application): You are therefore hereby commanded to make immediate search on the person of C. D. (or “in the house of E. F.,” or “in the house situated,” describing it, or any other place to be searched, with reasonable particularity, as the case may be), for the following property (describing it with reasonable particularity); and if you find the same, or any part thereof, to bring it forthwith before me at (stating the place).

This  day of  , 20 . L. M., Magistrate

Code 1858, § 5323; Shan., § 7301; Code 1932, § 11902; T.C.A. (orig. ed.), § 40-506.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 18.8, 18.89.

Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, § 27; 22 Tenn. Juris., Searches and Seizures, § 5.

NOTES TO DECISIONS

1. Conformity with Constitution and Statutes.

A search warrant must conform to the constitutional requirements of Tenn. Const., art. I, § 7, and also the statutory requirements. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

2. Description of Place.

Search warrant issued by a city judge, giving the name and street number of defendant, but omitting in its body the name of the city, county, or state, was sufficient, where such omissions were covered by the heading. Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924).

Definite reference to a street number in a given city and state meets the requirement for particular description of the place to be searched, but where there are two streets in the same city with identical names and numbers, or a number of occupants in possession of different rooms or different apartments at the particular street number, reference to the street number is not a sufficient description. State v. Bass, 153 Tenn. 162, 281 S.W. 936, 1925 Tenn. LEXIS 15 (1926).

The requirement of particular description of the place to be searched is met by a description which particularly points to a definitely ascertainable place so as to exclude all others, and enable the officer to locate the place to be searched with reasonable certainty without leaving it to his discretion. State v. Bass, 153 Tenn. 162, 281 S.W. 936, 1925 Tenn. LEXIS 15 (1926); Hatchett v. State, 208 Tenn. 399, 346 S.W.2d 258, 1961 Tenn. LEXIS 298 (1961).

A warrant authorizing search of a “frame building” located at the premises known as 2706 Cowart Street authorized search of a coalhouse located within three feet of the main building, and which was also marked with the number “2706,” the outhouse being appurtenant to and a part of the premises described. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

The place to be searched should “be designated with sufficient accuracy to prevent the officer from searching the premises of one person under a warrant directed against those of another.” Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 1944 Tenn. LEXIS 383 (1944).

The search warrant must be clear of ambiguity as to the place to be searched. Dolen v. State, 187 Tenn. 663, 216 S.W.2d 351, 1948 Tenn. LEXIS 481 (1948).

Search warrant was defective which failed to set forth any facts from which a reasonable conclusion might have been drawn that the evidence was in the place to be searched. State v. Longstreet, 619 S.W.2d 97, 1981 Tenn. LEXIS 454 (Tenn. 1981), overruled in part, State v. Leveye, 796 S.W.2d 948, 1990 Tenn. LEXIS 325 (Tenn. 1990).

In determining the validity of a search warrant when an attack is made upon the description of the place to be searched, the court must determine whether or not it will enable an officer to locate the place to be searched with reasonable certainty. State v. Nunley, 675 S.W.2d 197, 1984 Tenn. Crim. App. LEXIS 2365 (Tenn. Crim. App. 1984).

The search warrant provided an adequate description of the residence where the warrant stated the address of the premises and described the color of the bricks, the color of the trim, the color of the mailbox and the presence of a swimming pool behind a wooden fence in the back yard. State v. Vanderford, 980 S.W.2d 390, 1997 Tenn. Crim. App. LEXIS 1249 (Tenn. Crim. App. 1997).

3. —Owner of Place.

A search warrant properly describing the premises to be searched was not defective as to the search of such premises merely for failure to name the owner of the premises, though it would be defective as to search of his person. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

Search warrant adjudging that offenses of unlawful possession of gambling devices and gambling were being committed by “John Doe, alias” on premises described as “1476½ Market Street” which was the upstairs over the Paris Cafe validly authorized search of rooms occupied by defendant at that address though there were other rooms at the same address occupied by another person. Renner v. State, 187 Tenn. 647, 216 S.W.2d 345, 1948 Tenn. LEXIS 479 (1948).

4. —Warrant and Affidavit — Variance.

Warrant describing premises to be searched as 2706 “Coward” Street instead of 2706 “Cowart” Street was sufficient where there was no street in the city named “Coward” and the affidavit attached to the warrant gave the correct name of the street, the two names being idem sonans. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

5. —Reference to Affidavit.

The information presented to the magistrate in the affidavit for the issuance of a search warrant is not a part of the warrant, but evidence upon which the magistrate must determine whether or not the warrant should be issued. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923); Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924); Jackson v. State, 153 Tenn. 431, 284 S.W. 356, 1925 Tenn. LEXIS 40 (1926).

If warrant does not describe the premises in a sufficient manner it cannot be corrected by description appearing in affidavit though both warrant and affidavit are on one printed instrument. Minton v. State, 186 Tenn. 541, 212 S.W.2d 373, 1948 Tenn. LEXIS 577 (1948).

6. Description of Person.

Warrant describing the offender as “John Doe, alias,” though the officer procuring the warrant knew the name of the offender, would be insufficient to warrant a search of the offender's person, in view of this section, but is sufficient basis for a search of the premises occupied by him. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

Where warrant commanded the search of the specified truck under the control of the defendant but did not command the search of the defendant, no authority existed under the warrant for the search of the defendant. Parker v. State, 177 Tenn. 380, 150 S.W.2d 725, 1941 Tenn. LEXIS 14 (1941).

7. Description of Property.

A warrant must tell the officer what to search for, as well as where to search. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

If the purpose of search is to seize not specified property, but any property of a specified character, which by reason of its character, and of the place where and the circumstances under which it may be found, if found at all would be illicit, a description as to such character, place and circumstances, would be unnecessary. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 1944 Tenn. LEXIS 383 (1944); Hackerman v. State, 189 Tenn. 130, 223 S.W.2d 194, 1949 Tenn. LEXIS 408 (1949).

Where the purpose of the search is to find specific property, it should be so particularly described as to preclude the possibility of seizing any other. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 1944 Tenn. LEXIS 383 (1944); Hackerman v. State, 189 Tenn. 130, 223 S.W.2d 194, 1949 Tenn. LEXIS 408 (1949).

Where gaming tickets were obtained under search warrants issued on May 13, such search warrants were not converted into unconstitutional general warrants by reason of the fact that warrants were served on May 14 and tickets seized were dated May 14 as evidence showed that a comprehensive plan or scheme of a continuous nature was involved making it unnecessary for the exact property specified in the warrant to be seized. Solomon v. State, 203 Tenn. 583, 315 S.W.2d 99, 1958 Tenn. LEXIS 335 (1958), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

Property to be seized must not only be described as “stolen” but referred to with specificity, e.g., “stereo tapes or players;” similarly, a search warrant must describe those items as contraband when they are illegal by virtue of the nature of the use. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

Use of the term “drugs,” instead of more specific description such as “marijuana,” was an insufficient basis for the issuance of a search warrant. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

8. —Intoxicating Liquor.

Where an affidavit charged defendant with “handling, making, or selling whiskey,” and the warrant directed officers to search defendant's premises for “said articles,” the warrant was insufficient. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

Where intoxicating liquor is the object of search, a general description “intoxicating liquor” is a sufficient description of the thing for which search is to be made. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923); Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924).

A search warrant commanding search for “liquors” contains a sufficient description, for the word “liquor” is commonly used as meaning intoxicating liquor. Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, 1924 Tenn. LEXIS 16 (1924).

40-6-107. Return date.

  1. A search warrant shall be executed and returned to the magistrate by whom it was issued within five (5) days after its date, after which time, unless executed, it is void.
  2. All search warrants in this state may be executed either in the daytime or in the nighttime.

Code 1858, § 5326; Shan., § 7304; mod. Code 1932, § 11907; Acts 1969, ch. 252, § 1; T.C.A. (orig. ed.), § 40-507.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.122.

Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, § 28; 22 Tenn. Juris., Searches and Seizures, §§ 6, 7.

NOTES TO DECISIONS

1. Rebuttable Presumption.

There is a rebuttable presumption that a warrant served within the five-day period as provided in T.C.A. § 40-6-107 retains the probable cause validity attributed to it by the issuing magistrate, subject to a proper evidentiary showing to the contrary. The burden of proof is on the challenger to show not just that probable cause no longer exists, but that something objective occurred in the interval to reasonably put the police on notice of that fact. State v. Evans, 815 S.W.2d 503, 1991 Tenn. LEXIS 289 (Tenn. 1991).

2. Return on Day Executed.

Where search warrants directed that the officer make the return within 10 days but warrants were executed and returned on the day issued, the direction was mere surplusage and no injury arose to the defendant therefrom. Zimmerman v. State, 173 Tenn. 673, 122 S.W.2d 436, 1938 Tenn. LEXIS 53 (1938).

3. Second Search on Same Warrant.

Second search of defendant's premises for whiskey on the basis of search warrant used on first search was illegal and constituted unreasonable search and seizure even though second search was made within five days after date of warrant. McDonald v. State, 195 Tenn. 282, 259 S.W.2d 524, 1953 Tenn. LEXIS 335 (1953).

4. Civil Action for Malicious Prosecution.

In action for malicious prosecution because of a search warrant, plaintiff sufficiently showed a termination of the litigation by his allegation and proof that no property had been found by the officer when his premises were searched and that the warrant had been returned to the court issuing the same with the official statement to such effect. Townsell v. Louisville & N.R.R., 4 Tenn. Civ. App. (Higgins) 211 (1912).

5. Failure to Return.

Where warrant is duly executed within five days, the failure of the officer to make the return within five days does not affect its validity, the return being a mere ministerial duty. Bowman v. State, 211 Tenn. 38, 362 S.W.2d 255, 1962 Tenn. LEXIS 338 (1962).

Failure to return an executed search warrant to the issuing magistrate did not render the warrant invalid since the return of an officer upon a search warrant is a ministerial function and does not affect the validity of the warrant and its execution by the officer. State v. Hilliard, 906 S.W.2d 466, 1995 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. 1995).

6. Improper Return.

An improper return of the search warrant cannot negate the validity of an otherwise legal search. State v. Robinson, 622 S.W.2d 62, 1981 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. 1980), dismissed, LeMay v. Tennessee, 454 U.S. 1096, 102 S. Ct. 667, 70 L. Ed. 2d 636, 1981 U.S. LEXIS 2831 (1981).

7. Improper Execution.

Execution of a warrant beyond the five-day period fixed by T.C.A. § 40-6-107 renders the warrant impermissibly void and in violation of the U.S. Const., amend. 4 prohibition against unreasonable searches and seizures. State v. Evans, 815 S.W.2d 503, 1991 Tenn. LEXIS 289 (Tenn. 1991).

8. Choice of Law.

Whether state or federal law should be applied to determine the validity of a warrant issued by a federal magistrate that was executed one day too late under T.C.A. § 40-6-107 and Tenn. R. Crim. P. 41(d), but within the 10-day limit set by federal law, did not turn, as a matter of law, on the forum in which the evidence was proffered; instead, the matter was one which turned, as a factual matter, on the relationship between the federal and state officers involved in the case and on whether those officers were acting under color of state law. State v. Hudson, 849 S.W.2d 309, 1993 Tenn. LEXIS 51 (Tenn. 1993).

9. Timely Execution.

Search warrant was executed when the agent transferred the cell phones to the Tennessee Bureau of Investigation technical services unit, within the five-day time period. State v. Patel, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Aug. 25, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 12 (Tenn. Jan. 17, 2018).

40-6-108. Exclusionary Rule Reform Act.

  1. Notwithstanding any law to the contrary, any evidence that is seized as a result of executing a search warrant issued pursuant to this part or pursuant to Tennessee Rules of Criminal Procedure Rule 41 that is otherwise admissible in a criminal proceeding and not in violation of the constitution of the United States or Tennessee shall not be suppressed as a result of any violation of this part or any violation of Tennessee Rules of Criminal Procedure Rule 41 if the court determines that such violation was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate as defined in subsection (c).
  2. This section does not limit or prohibit the enforcement of any appropriate civil remedy in actions pursuant to other provisions of law against any individual or government entity found to have conducted an unreasonable search or seizure; provided, however, that unless otherwise provided by federal law or the constitution of Tennessee, if any evidence is seized as a result of a good faith mistake or technical violation, as defined in subsection (c), the individual or government entity shall not be civilly liable.
  3. As used in this section, unless the context otherwise requires, “good faith mistake or technical violation” means:
    1. An unintentional clerical error or clerical omission made by a law enforcement officer, court official or issuing magistrate in the form, preparation, issuance, filing and handling of copies, or return and inventory of a search warrant;
    2. When the officer to whom the warrant is delivered for execution is not present during the execution but an officer with law enforcement authority over the premises does otherwise execute the search warrant;
    3. A reasonable reliance on a statute that is subsequently ruled unconstitutional; or controlling court precedent that is overruled after the issuance of a search warrant, unless the court overruling the precedent orders the new precedent to be applied retroactively.

Acts 2011, ch. 252, § 1.

Attorney General Opinions. Constitutionality of “Exclusionary Rule Reform Act”.  OAG 11-32, 2011 Tenn. AG LEXIS 34 (4/11/11).

NOTES TO DECISIONS

1. Applicability.

Trial court did not err in granting defendant's motion to suppress because the Exclusionary Rule Reform Act could not be applied to defendant's case; the Act did not contain any indication by the Legislature that it could be applied retroactively, and the retroactive application of the Act violated defendant's constitutional protection against ex post facto laws because it altered defendant's situation to his disadvantage. State v. Hayes, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 576 (Tenn. Crim. App. July 1, 2013), overruled, State v. Pruitt, 510 S.W.3d 398, 2016 Tenn. LEXIS 980 (Tenn. Dec. 30, 2016).

Trial court did not err by granting defendant's motion to suppress evidence on the ground that a police officer's failure to deliver a copy of a search warrant to defendant was not a “clerical error” under the Exclusionary Rule Reform Act where the legislature carefully worded the definition of “good faith mistake or technical violation” to include only those errors and omissions that were “clerical” and the legal definition of “clerical error” referred to a mistake in writing such as an unintentional typographical error or an omission in the writing. Nothing indicated that the legislature intended for the ERRA to permit the admission of evidence that was obtained when the State completely failed to deliver a copy of the search warrant to a defendant in violation of Tenn. R. Crim. P. 41. State v. Daniel, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Mar. 29, 2016), rev'd, — S.W.3d —, 2018 Tenn. LEXIS 383 (Tenn. July 20, 2018).

Trial court did not err by refusing to suppress evidence seized from the search of defendant's home on the ground that the search warrant did not comply with Tenn. R. Crim. P. 41 where the court determined that T.C.A. §  40-6-108 was constitutional and therefore the evidence admitted was not in error. State v. Lowe, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 497 (Tenn. Crim. App. July 12, 2016), aff'd, 552 S.W.3d 842, 2017 Tenn. LEXIS 904 (Tenn. Sept. 6, 2017).

Tennessee Exclusionary Rule Reform Act, T.C.A. § 40-6-108, was not an ex post facto statute as applied in defendant's case. As a result, defendant's motion to suppress the evidence against defendant was not well-taken because the error in the date written on the search warrant was a good faith or technical mistake and the trial court properly ruled that, pursuant to the Act, the evidence was not to be suppressed. State v. Pruitt, 510 S.W.3d 398, 2016 Tenn. LEXIS 980 (Tenn. Dec. 30, 2016).

Because the holding that the execution of search warrants was unconstitutional was based on a violation of the United States and Tennessee Constitutions, the statute did not apply. State v. Frazier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Sept. 25, 2017), aff'd, — S.W.3d —, 2018 Tenn. LEXIS 537 (Tenn. Sept. 26, 2018).

2. Good Faith Mistakes Or Technical Violations.

Trial court erred when it denied defendant's motion to suppress in reliance on the Exclusionary Rule Reform Act; while the three copies of the search warrant were not exact replicas because two said the warrant was issued in the morning, and one said it was issued in the evening, as the search was conducted immediately after the warrant was issued, it was obvious that the mistake was a good-faith clerical error that was inconsequential, and the exclusionary rule was not to be applied. State v. Lowe, 552 S.W.3d 842, 2017 Tenn. LEXIS 904 (Tenn. Sept. 6, 2017).

Defendant's motion to suppress the evidence of defendant's blood alcohol concentration level obtained pursuant to a search warrant was properly granted because, based upon the court's discrediting the testimony from the magistrate and the officer, the inconsistent testimony of each witness, and the absence of a definitive explanation for the time of issuance discrepancies during the suppression hearing, the record did not preponderate against the trial court's determination that the discrepancies were not mere technical violations or good faith mistakes. State v. Collier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1036 (Tenn. Crim. App. Dec. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 221 (Tenn. Apr. 18, 2018).

3. Constitutionality.

Exclusionary Rule Reform Act (ERRA), is an attempt by the General Assembly to abrogate both the express terms of the rule and the Tennessee Supreme Court's prior holdings regarding the rule; the Court has the authority and responsibility to decide whether a good-faith exception, or any other exception to the exclusionary rule, should be adopted, and by passing the ERRA, the General Assembly usurped that authority and responsibility; the ERRA represents a violation of the Tennessee Constitution's Separation of Powers Clause. State v. Lowe, 552 S.W.3d 842, 2017 Tenn. LEXIS 904 (Tenn. Sept. 6, 2017).

40-6-109. [Expired.]

Acts 2014, ch. 769, § 1; expired pursuant to Acts 2014, ch. 769, § 2, effective July 1, 2015.

Compiler's Notes. Former section § 40-6-109, concerning application for and issuance of warrant by electronic means, expired pursuant to Acts 2014, ch. 769, § 2, which provided that this section shall cease to be effective on July 1, 2015.

40-6-110. Searches of cellular telephones and cellular telephone data.

  1. As used in this section:
    1. “Cellular telephone” means a wireless telephone authorized by the federal communications commission to operate in the frequency bandwidth reserved for cellular radio telephones;
    2. “Cellular telephone data” means any data that is stored in a cellular telephone including telephone numbers, addresses, pictures, documents, texts, videos, music and any other information that is stored in a cellular telephone; and
    3. “Law enforcement officer” means any person authorized to effectuate an arrest who is employed by the state, or a county, municipality or metropolitan form of government.
  2. No law enforcement officer shall search, examine, extract or duplicate any cellular telephone data, even if incident to a lawful arrest, unless:
    1. The officer has obtained a search warrant issued pursuant to this part or Rule 41 of the Tennessee Rules of Criminal Procedure;
    2. The owner of the cellular telephone or the person in possession of the cellular telephone at the time it is seized gives the officer informed consent for the officer to search the cellular telephone; or
    3. Exigent circumstances exist at the time of the seizure requiring the officer to search the cellular telephone.
  3. No cellular telephone data that is obtained in violation of this section may be used in any court of law or administrative board as evidence, nor may other evidence that is derived from the illegally obtained data be used as evidence in any such proceeding.
  4. This section shall not apply to any cellular telephone that, at the time of its seizure or discovery, has been abandoned by the owner or person responsible for its abandonment.

Acts 2014, ch. 785, § 1.

Code Commission Notes.

Acts 2014, ch. 785, § 1 purported to enact § 40-6-109. Section 40-6-109 was previously enacted by Acts 2014, ch. 769, § 1; therefore, the enactment by Acts 2014, ch. 785, § 1 was designated as § 40-6-110 by the authority of the code commission.

Part 2
Arrest Warrants

40-6-201. “Warrant of arrest” defined.

A warrant of arrest is an order, in writing, stating the substance of the complaint, directed to a proper officer, signed by a magistrate, and commanding the arrest of the defendant.

Code 1858, § 5023; Shan., § 6982; Code 1932, § 11521; T.C.A. (orig. ed.), § 40-706.

Compiler's Notes. This part may be affected by Tenn R. Crim. P. 4.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. L. Rev. 319.

Attorney General Opinions. Issuance of citations and arrest warrants by general sessions court clerks, OAG 00-044 (3/13/00).

Multiple crimes in single warrant.  OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. Valid Arrest Warrant.

Trial court properly granted defendant's motion to dismiss an indictment charging her with the misdemeanor offenses of driving under the influence and simple possession of marijuana because no document in the record qualified as a valid arrest warrant, the State failed to establish that defendant's first appearance in general sessions court was within the applicable statute of limitations, and more than one year had elapsed between date of the offenses and date defendant's case was bound over to the grand jury. State v. Hayes, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 466 (Tenn. Crim. App. June 29, 2016).

2. No Arrest Warrant Issued.

Trial court properly granted defendant's motion to dismiss because an arrest warrant was never issued, and the form affidavit of complaint did not substitute for a valid arrest warrant since it did not contain an order that defendant be arrested and brought before the nearest appropriate magistrate in the county of arrest; the affidavit of complaint was initially signed by a notary public rather than a qualified judicial officer and contained no order commanding the arrest of defendant. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. Aug. 4, 2016).

40-6-202. Power of magistrates.

For the apprehension of persons charged with public offenses, magistrates are authorized within their jurisdiction, to issue warrants of arrest, under the rules and regulations prescribed in this part.

Code 1858, § 5019; Shan., § 6978; Code 1932, § 11517; T.C.A. (orig. ed.), § 40-701.

Cross-References. Condemned inmate, warrant for, § 40-23-118.

Magistrate defined, § 40-5-101.

Extradition, governor's warrant of arrest, § 40-9-116.

Officials designated as magistrates, § 40-1-106.

Person withholding books and property appertaining to public office, warrant of commitment, § 8-49-105.

Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-12-5.

Tennessee Jurisprudence, 25 Tenn. Juris., Warrants, § 3.

Law Reviews.

The Tennessee Law of Arrest (Rollin M. Perkins), 2 Vand. L. Rev. 509.

Attorney General Opinions. Authority of magistrate to prohibit the making and signing of an affidavit of complaint, OAG 99-188 (9/22/99).

NOTES TO DECISIONS

1. Constitutionality.

The issuance of a state's warrant by a nonsalaried justice of the peace (now judge of the court of general sessions) does not satisfy the requirements of a neutral and detached magistrate and is violative of U.S. Const., amend. 14 and Tenn. Const., art. I, § 8. In re Dender, 571 S.W.2d 491, 1978 Tenn. LEXIS 647 (Tenn. 1978).

2. Issuance in County Where Found.

Warrants of arrest may be issued not only in the county in which the offense was committed, but also in any county in which the person sought to be arrested is found. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

40-6-203. Examination of affiant.

  1. Upon information made to any magistrate of the commission of a public offense, the magistrate shall examine, on oath, the affiant or affiants, reduce the examination to writing, and cause the examination to be signed by the person making it.
    1. The examination of the affiant or affiants by the magistrate or lawfully authorized court clerk does not have to take place in a face-to-face meeting of the parties but may be conducted through the use of electronic audio-visual equipment which allows the affiant and the examining official to both view and hear each other simultaneously.
    2. Prior to the examination, an affiant shall prepare an affidavit of complaint in conformance with Rule 3 of the Tennessee Rules of Criminal Procedure and shall electronically transmit a facsimile copy of that affidavit to the examining official. After the receipt of a legible facsimile copy of the affidavit of complaint, the examining official shall proceed with the examination upon taking the oath of the affiant. Upon the determination by the examining official that the transmitted facsimile copy is a true copy of the affidavit of complaint of an affiant, the copy shall have the same legal effect as the original affidavit of complaint executed by an affiant.

Code 1858, § 5020; Shan., § 6979; Code 1932, § 11518; T.C.A. (orig. ed.), § 40-702; Acts 1999, ch. 51, § 1; 2003, ch. 366, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.8.

Law Reviews.

Effective Minor Courts: Key to Court Modernization (James G. France), 40 Tenn. L. Rev. 29 (1972).

Attorney General Opinions. An arrest warrant issued following the steps outlined in a detailed proposal would constitute a valid charging instrument, OAG 00-124 (8/7/00).

Multiple crimes in single warrant.  OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. Purpose.

Sections 40-6-203 — 40-6-205 are calculated to reduce the probability of malicious prosecution cases. Cohen v. Cook, 62 Tenn. App. 292, 462 S.W.2d 502, 1969 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1969), aff'd, 224 Tenn. 729, 462 S.W.2d 499, 1970 Tenn. LEXIS 374 (1970).

2. Unsigned Affidavit.

Where the affidavit supporting a warrant was not signed before issuance of the warrant, the warrant at issue was never valid, as there was no sworn statement to support issuance of the warrant. State v. Wilson, 6 S.W.3d 504, 1998 Tenn. Crim. App. LEXIS 1176 (Tenn. Crim. App. 1998).

3. Affidavit Insufficient.

Because the affidavit of complaint contemplated further action, it was not a valid arrest warrant, it was insufficient to commence prosecution. State v. Shell, 512 S.W.3d 267, 2016 Tenn. Crim. App. LEXIS 474 (Tenn. Crim. App. June 29, 2016).

Circuit court properly granted defendant's motion to dismiss an indictment charging him with driving under the influence because the prosecution was not commenced within the one-year statute of limitations, the affidavit of complaint was signed before a notary public rather than a qualified judicial officer, and there was no evidence in the record to indicate that defendant did, in fact, make any court appearance prior to the time he waived his right to a preliminary hearing, more than one year after the commission of the offenses. State v. Grieco, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 182 (Tenn. Crim. App. Mar. 10, 2017).

Circuit court properly granted defendant's motion to dismiss the misdemeanor charges of driving under the influence and following too closely because the prosecution was not commenced within the one-year statute of limitations, and the affidavit of complaint was invalid where it was signed before a notary public rather than a qualified judicial officer, and there was no evidence in the record to indicate that defendant did, in fact, make any court appearance prior to the time she waived her right to a preliminary hearing, more than one year after the commission of the offenses. State v. Helbert, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 183 (Tenn. Crim. App. Mar. 10, 2017).

4. Valid Arrest Warrant.

Trial court properly granted defendant's motion to dismiss an indictment charging her with the misdemeanor offenses of driving under the influence and simple possession of marijuana because no document in the record qualified as a valid arrest warrant, the State failed to establish that defendant's first appearance in general sessions court was within the applicable statute of limitations, and more than one year had elapsed between date of the offenses and date defendant's case was bound over to the grand jury. State v. Hayes, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 466 (Tenn. Crim. App. June 29, 2016).

5. Affidavit of Complaint.

Trial court properly granted defendant's motion to dismiss because an arrest warrant was never issued, and the form affidavit of complaint did not substitute for a valid arrest warrant since it did not contain an order that defendant be arrested and brought before the nearest appropriate magistrate in the county of arrest; the affidavit of complaint was initially signed by a notary public rather than a qualified judicial officer and contained no order commanding the arrest of defendant. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. Aug. 4, 2016).

Affidavit of complaint was void because the officer's signing of the affidavit of complaint before a notary public rather than a qualified judicial officer did not meet the requirements of the statute. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. Aug. 4, 2016).

40-6-204. Contents of examination.

The written examination shall set forth the facts stated by the affiant or affiants that establish that there is probable cause to believe an offense has been committed and that the defendant committed it.

Code 1858, § 5021; Shan., § 6980; Code 1932, § 11519; T.C.A. (orig. ed.), § 40-703; Acts 2003, ch. 366, § 2.

Attorney General Opinions. Multiple crimes in single warrant.  OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. Purpose.

Sections 40-6-203 — 40-6-205 are intended to reduce the probability of malicious prosecution. Cohen v. Cook, 62 Tenn. App. 292, 462 S.W.2d 502, 1969 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1969), aff'd, 224 Tenn. 729, 462 S.W.2d 499, 1970 Tenn. LEXIS 374 (1970).

2. Affidavit of Complaint.

Trial court properly granted defendant's motion to dismiss because an arrest warrant was never issued, and the form affidavit of complaint did not substitute for a valid arrest warrant since it did not contain an order that defendant be arrested and brought before the nearest appropriate magistrate in the county of arrest; the affidavit of complaint was initially signed by a notary public rather than a qualified judicial officer and contained no order commanding the arrest of defendant. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. Aug. 4, 2016).

40-6-205. Issuance of warrant.

  1. If the magistrate is satisfied from the written examination that there is probable cause to believe the offense complained of has been committed and that there is probable cause to believe the defendant has committed it, then the magistrate shall issue an arrest warrant. The finding of probable cause shall be based on evidence, which may be hearsay in whole or in part; provided, however, that 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.
  2. In determining whether to issue an arrest warrant pursuant to subsection (a), or a criminal summons pursuant to § 40-6-215, the following shall apply:
    1. If a single or multiple affiants are seeking a warrant of arrest for a felony or misdemeanor offense, and at least one (1) or more of the affiants is a law enforcement officer, as defined by § 39-11-106, the magistrate shall issue an arrest warrant unless the law enforcement officer requests a summons be issued instead;
    2. If a single or multiple affiants are seeking a warrant of arrest for a misdemeanor offense, as defined in § 39-11-110, and none of the affiants is a law enforcement officer, as defined by § 39-11-106, there is a presumption that the magistrate shall issue a criminal summons. The presumption is overcome if:
      1. The affiant or affiants request a warrant, submit sufficient information demonstrating the need for a warrant, and the magistrate agrees that an arrest warrant should be issued instead of a summons; or
      2. The magistrate finds an arrest warrant is necessary to prevent immediate danger to a victim of domestic abuse, sexual assault or stalking as defined in § 36-3-601;
    3. If a single or multiple affiants are seeking a warrant of arrest for a felony offense as defined in § 39-11-110, and none of the affiants is a law enforcement officer, as defined by § 39-11-106, there is a presumption that the magistrate shall not issue either a criminal summons as provided in § 40-6-215, or an arrest warrant. This presumption is overcome if the magistrate finds an arrest warrant is necessary to prevent immediate danger to a victim of domestic abuse, sexual assault or stalking as defined in § 36-3-601.
  3. Notwithstanding this section, if the affiant to an affidavit of complaint for an arrest warrant is the parent or legal guardian of a child who is the victim of alleged criminal conduct, no arrest warrant shall issue to the affiant without the written approval of the district attorney general in the district in which the conduct occurred if:
    1. The person the affiant seeks to have arrested was an employee of a local education agency (LEA) at the time of the alleged offense; and
    2. The affiant alleges that the LEA employee engaged in conduct that harmed the child of the affiant parent or legal guardian and, at the time of the conduct, the LEA employee had supervisory or disciplinary power over the child.

Code 1858, § 5022; Shan., § 6981; Code 1932, § 11520; T.C.A. (orig. ed.), § 40-704; Acts 2003, ch. 366, § 3; 2004, ch. 889, § 1; 2005, ch. 482, § 3; 2009, ch. 390, § 1; 2014, ch. 531, § 1.

Compiler's Notes. Acts 2014, ch. 531, § 3, provided that the act, which amended subsections (a) and (b), shall apply to all warrants of arrest and criminal summons issued before or after July 1, 2014.

Cross-References. Persons whose compensation is contingent upon issuance or nonissuance prohibited from issuing warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.8.

Law Reviews.

Pressing Charges: Arrest Warrants Severely Restricted Under New Law (David Raybin), 40 No. 3 Tenn. B.J. 30 (2004).

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

Attorney General Opinions. Magistrate may identify deficiencies in a warrant application or affidavit and inform a requesting officer what is needed to cure such deficiencies without abandoning his or her judicial role as a neutral and detached magistrate.   OAG 14-10, 2014 Tenn. AG LEXIS 11 (1/16/14).

Effect of Acts 2014, ch. 531 on arrests by private citizens, security officers; warrant requirements where affiant not a law enforcement officer. OAG 14-93, 2014 Tenn. AG LEXIS 96 (10/24/14).

Multiple crimes in single warrant.  OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. Purpose.

Sections 40-6-203 — 40-6-205 are intended to reduce the probability of malicious prosecution. Cohen v. Cook, 62 Tenn. App. 292, 462 S.W.2d 502, 1969 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1969), aff'd, 224 Tenn. 729, 462 S.W.2d 499, 1970 Tenn. LEXIS 374 (1970).

2. Costs on Issuance Without Reasonable Cause.

A warrant of arrest issued upon the affidavit of one who did not know the facts of his own knowledge, but had been told by a third party that the offense had been committed, was issued without sufficient legal grounds. State v. Good, 77 Tenn. 240, 1882 Tenn. LEXIS 45 (1882).

3. City Ordinance Violation — Necessity.

Prosecution for violation of city ordinance is a civil proceeding, hence warrant does not have to be issued on oath of a person even though offense is prohibited by both city ordinance and state law. Nashville v. Baker, 167 Tenn. 661, 73 S.W.2d 169, 1933 Tenn. LEXIS 75 (1934).

4. Reasonable Grounds.

A reasonable ground is one that would justify a reasonable man to believe that a particular person was guilty of a felony. State v. Haynes, 720 S.W.2d 76, 1986 Tenn. Crim. App. LEXIS 2699 (Tenn. Crim. App. 1986).

5. Unsigned Affidavit.

Where the affidavit supporting a warrant was not signed before issuance of the warrant, the warrant at issue was never valid, as there was no sworn statement to support issuance of the warrant. State v. Wilson, 6 S.W.3d 504, 1998 Tenn. Crim. App. LEXIS 1176 (Tenn. Crim. App. 1998).

6. Affidavit of Complaint.

Trial court properly granted defendant's motion to dismiss because an arrest warrant was never issued, and the form affidavit of complaint did not substitute for a valid arrest warrant since it did not contain an order that defendant be arrested and brought before the nearest appropriate magistrate in the county of arrest; the affidavit of complaint was initially signed by a notary public rather than a qualified judicial officer and contained no order commanding the arrest of defendant. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. Aug. 4, 2016).

40-6-206. Time of issuance and return — Misdemeanor cases.

Any process, warrant, precept or summons authorized to be issued by any of the judges or clerks of the court, in any criminal prosecution on behalf of the state, may be issued at any time and made returnable to any day of the term. In a misdemeanor case, if a process, warrant, precept or summons has not been served, returned or quashed within five (5) years from the date of its issuance, the process, warrant, precept or summons shall be automatically terminated and removed from the records.

Code 1858, § 5031 (deriv. Acts 1794, ch. 1, § 10); Shan., § 6991; Code 1932, § 11530; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-705; Acts 1993, ch. 387, § 1.

Attorney General Opinions. T.C.A. § 40-6-206 has no application to probation violation warrants, OAG 02-126 (11/25/02).

Applicability of T.C.A. § 40-6-206 to felony cases, OAG 06-001 (1/3/06).

T.C.A. § 40-6-206 does not apply to probation violation warrants, OAG 06-001 (1/3/06).

NOTES TO DECISIONS

1. Search Warrant.

A search warrant is a warrant issued in a “criminal prosecution on behalf of the state” as the phrase is used in this section. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

2. Issuance on Sunday.

The broad language of this section authorizing issuance of process in criminal cases “at any time” authorizes the issuance of such process on Sunday, and the performance on Sunday of any judicial act necessary as a prerequisite to the issuance of such process. Seals v. State, 157 Tenn. 538, 11 S.W.2d 879, 1928 Tenn. LEXIS 218 (1928).

40-6-207. Form of warrant.

The warrant of arrest may be substantially as follows:

State of Tennessee,

County of  .

To any lawful officer of the state:

Information on oath having been made to me that the offense of (designating or describing it) has been committed, and accusing C. D. thereof: You are, therefore, commanded, in the name of the state, forthwith to arrest C. D., and bring C. D. before me, or some other magistrate of the county, to answer the charge. E. F., Magistrate for  County.

Code 1858, § 5025; Shan., § 6984; Code 1932, § 11523; T.C.A. (orig. ed.), § 40-707.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.10.

Attorney General Opinions. Multiple crimes in single warrant.  OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. False Imprisonment — Void Warrant.

A warrant for arrest which is not fair and regular on its face, but void, affords the officer attempting to serve it no protection as against an action for false imprisonment. Reichman v. Harris, 252 F. 371, 1918 U.S. App. LEXIS 2071 (6th Cir. Tenn. 1918).

40-6-208. Contents of warrant.

  1. The warrant should specify the name of the defendant, but if it is unknown to the magistrate, the defendant may be designated in the warrant by any name.
  2. It should also state the offense either by name, or so that it can be clearly inferred.
  3. It should also show, in some part, the county in which issued, the name and initials of the magistrate in office.
  4. The warrant shall include a copy of the affidavit of complaint.

Code 1858, §§ 5026, 5027; Shan., §§ 6985, 6986; Code 1932, §§ 11524, 11525; T.C.A. (orig. ed.), §§ 40-708, 40-709; Acts 2003, ch. 366, § 4.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.10.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

Attorney General Opinions. Multiple crimes in single warrant.  OAG 15-20, 2015 Tenn. AG LEXIS 20 (3/13/15).

NOTES TO DECISIONS

1. Sufficiency of Warrant.

All questions as to the sufficiency of the warrant are foreclosed by the finding of an indictment. Jones v. Tenn., 206 Tenn. 245, 332 S.W.2d 662, 1960 Tenn. LEXIS 512 (1960).

Where warrant, when read in its entirety, clearly inferred that defendant was charged with fourth successive offense of driving a motor vehicle on a public highway while under the influence of an intoxicant, warrant was not fatally defective. Murff v. State, 221 Tenn. 111, 425 S.W.2d 286, 1967 Tenn. LEXIS 359 (1967).

Where defendant was arrested on a warrant for D.U.I., his indictment issued more than one year later, which charged him with driving while under the influence of an intoxicant and for driving with an alcohol concentration of .10 percent or more, was not untimely as to the second charge because the warrant need not have specified the facts of the charge and properly apprised defendant of the potential charges against which he would have to defend. State v. Tait, 114 S.W.3d 518, 2003 Tenn. LEXIS 826 (Tenn. 2003).

Prosecution for attempted aggravated rape was properly and timely commenced with in the eight-year statute of limitations for attempted aggravated rape, T.C.A. § 40-2-101(b)(1)-(2), by the filing of the “John Doe” arrest warrant because The “John Doe” designation in the warrant, coupled with the detailed DNA profile of the assailant, identified defendant with “reasonable certainty” as required by the Fourth Amendment, Tenn. Const. art. I, § 7, T.C.A. § 40-6-208, and Tenn. R. Crim. P. 4(c)(1)(B). State v. Burdick, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

Criminal prosecution is commenced if, within the statute of limitations for a particular offense, a warrant is issued identifying the defendant by gender and his or her unique DNA profile; a DNA profile exclusively identifies an accused with nearly irrefutable precision and, as a general rule, satisfies the particularity requirements of the Fourth Amendment to the United States Constitution and Tenn. Const. art. I, § 7. State v. Burdick, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

40-6-209. Officer to whom directed.

The warrant should be directed to any lawful officer of the state, but if executed by any officer having authority, it is valid without regard to its direction.

Code 1858, § 5024; Shan., § 6983; Code 1932, § 11522; T.C.A. (orig. ed.), § 40-710.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.21.

40-6-210. Person by whom executed. [Amendments made by Acts 1996, ch. 753, § 2 contingent on county approval. See the Compiler's Notes.]

A warrant may be executed by any sheriff, or officer acting as sheriff, or the sheriff's deputy, or marshal, or police officer of any city or town, acting within the sheriff's county, or by any person otherwise authorized by law. The reference to “sheriff” or “deputy sheriff” in this section also includes constables in counties of this state having a population of:

not less than  nor more than

3,700 4,700

6,000 7,800

8,400 8,500

8,535 8,540

9,200 9,570

10,770 10,780

11,512 11,550

11,700 11,900

12,000 13,000

14,500 14,600

15,300 15,500

15,750 16,000

17,000 17,350

18,000 18,200

18,300 18,900

19,000 19,100

21,000 21,500

21,600 22,300

23,200 23,350

23,355 23,391

23,391 23,450

23,500 23,750

24,000 24,255

25,600 27,500

27,900 28,000

28,555 28,600

29,250 31,250

31,260 33,000

33,700 34,000

35,480 41,800

41,900 50,000

57,550 59,400

59,500 60,050

60,600 62,000

64,000 65,000

100,000 118,400

118,700 200,000

according to the 1960 federal census or any subsequent federal census, and Fentress and Hamblen counties.

Code 1858, § 5028; Shan., § 6987; Code 1932, § 11526; Acts 1969, ch. 160, § 3; 1969, ch. 319, §§ 3, 4; 1970, ch. 456, § 1; 1970, ch. 496, § 1; 1970, ch. 588, §§ 1, 2; 1971, ch. 53, §§ 1-3; 1971, ch. 231, § 1; 1972, ch. 584, § 1; 1973, ch. 389, § 1; 1974, ch. 631, §§ 1, 2; Private Acts 1976, ch. 242, § 1; Private Acts 1976, ch. 293, § 1; Acts 1977, ch. 239, § 3; 1982, ch. 881, § 1; T.C.A. (orig. ed.), § 40-711; Acts 1991, ch. 9, § 4; 1992, ch. 973, § 3; Private Acts 1994, ch. 191 § 2; Acts 1996, ch. 753, § 2.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 1996, ch. 753, § 6 abolished the office of constable, effective in any county having a population of not less than thirty-one thousand one hundred (31,100) nor more than thirty-one thousand four hundred (31,400) according to the 1990 federal census or any subsequent federal census, upon adoption of a resolution by July 15, 1996, by a two-thirds (2/3) vote of the county legislative body of such county.

Acts 1996, ch. 753, § 7 provided that the provisions of the act apply to and shall become effective in any county having a population of not less than thirty-one thousand one hundred (31,100) nor more than thirty-one thousand four hundred (31,400), according to the 1990 federal census or any subsequent federal census upon adoption of a resolution by July 15, 1996, by a two-thirds (2/3) vote of the county legislative body of such county. Acts 1996, ch. 753, § 2, which amended this section, provided that, in accordance with Acts 1996, ch. 753, § 7, upon adoption of a resolution by the county legislative body of any county to which this act applies, § 40-6-210, is amended by deleting the figure “24,300” under the heading “nor more than” and by substituting instead the figure “24,255”; by deleting the figure “28,500” under the heading “not less than” and by substituting instead the figure “28,555”; by deleting the figure “33,000” under the heading “nor more than” and by substituting instead the figure “31,250”; and by adding a new population category by inserting the figure “31,260” under the heading “not less than” and the figure “33,000” under the heading “nor more than.” The section as set out above reflects the amendment by ch. 753.

Cross-References. Counties in which office of constable has been abolished, § 8-10-101.

Refusal to perform duty, § 39-16-402.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.21, 18.153.

Attorney General Opinions. Municipal police officers' authority to execute state arrest warrants, OAG 98-0153 (8/17/98).

Extent of municipal police authority beyond municipal limits.  OAG 10-48, 2010 Tenn. AG LEXIS 48 (4/12/10).

40-6-211. Accuseds outside county — Persons to whom warrant issued — Accused brought before magistrate.

When the person accused has fled, or resides out of the county where the offense was committed, the warrant may issue to any lawful officer of any county in the state, and the accused may be brought before the magistrate issuing the warrant, or any other magistrate.

Code 1858, § 5029 (deriv. Acts 1822, ch. 40, § 2); Shan., § 6988; Code 1932, § 11527; T.C.A. (orig. ed.), § 40-712.

Cross-References. Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.3, 1.21, 1.23.

Tennessee Jurisprudence, 25 Tenn. Juris., Warrants, § 3.

NOTES TO DECISIONS

1. Execution in “Any County.”

A warrant may be executed by any lawful officer of the state into whose hands such warrant may come, in any county of the state. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

40-6-212. Execution outside county.

When the sheriff, deputy sheriff, coroner or any other officer of any county in this state has possession of a warrant or capias for the arrest of any person charged with the commission of a crime, it is lawful for the sheriff, deputy sheriff, coroner or any other officer to execute that process, and arrest the person so charged in any county in this state. “Sheriff” also includes “constable” in those counties enumerated in § 40-6-210.

Acts 1871, ch. 50, § 1; Shan., § 6989; Code 1932, § 11528; Acts 1969, ch. 160, § 3; 1969, ch. 319, §§ 3, 4; T.C.A. (orig. ed.), § 40-713.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.3, 1.23, 18.164.

40-6-213. Execution anywhere in state.

The magistrate issuing the warrant may empower any law enforcement officer to execute the warrant anywhere in the state.

Code 1858, § 5030; Shan., § 6990; Code 1932, § 11529; T.C.A. (orig. ed.), § 40-714; Acts 1993, ch. 241, § 66.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.21, 18.164.

40-6-214. Authority of clerks and deputies of general sessions courts.

Clerks of courts of general sessions and their duly sworn deputies have jurisdiction and authority, concurrent with that of the judges of the general sessions court, to issue warrants for the arrest of persons.

Acts 1955, ch. 150, § 1; T.C.A., § 40-715; Acts 1993, ch. 241, § 67.

Cross-References. Authority of court clerks to issue arrest warrants, Tenn. R. Crim. P. 4.

Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.6.

40-6-215. Summons instead of arrest warrant.

  1. As an alternative to an arrest warrant as provided in § 40-6-205, the magistrate or clerk may issue a criminal summons instead of an arrest warrant. In determining whether to issue a criminal summons or an arrest warrant as provided in § 40-6-205, this subsection (a) shall apply:
    1. If a single or multiple affiants are seeking a warrant of arrest for a felony or misdemeanor offense, and at least one (1) or more of the affiants is a law enforcement officer, as defined by § 39-11-106, the magistrate shall issue an arrest warrant unless the law enforcement officer requests a summons be issued instead;
    2. If a single or multiple affiants are seeking a warrant of arrest for a misdemeanor offense, as defined in § 39-11-110, and none of the affiants is a law enforcement officer, as defined by § 39-11-106, there is a presumption that the magistrate shall issue a criminal summons. The presumption is overcome if:
      1. The affiant or affiants request a warrant, submit sufficient information demonstrating the need for a warrant, and the magistrate agrees that an arrest warrant should be issued instead of a summons; or
      2. The magistrate finds an arrest warrant is necessary to prevent immediate danger to a victim of domestic abuse, sexual assault or stalking as defined in § 36-3-601;
    3. If a single or multiple affiants are seeking a warrant of arrest for a felony offense as defined in § 39-11-110, and none of the affiants is a law enforcement officer, as defined by § 39-11-106, there is a presumption that the magistrate shall not issue either a criminal summons as provided in this section, or an arrest warrant. This presumption is overcome if the magistrate finds an arrest warrant is necessary to prevent immediate danger to a victim of domestic abuse, sexual assault or stalking as defined in § 36-3-601.
  2. The criminal summons shall be in substantially the same form as an arrest warrant except that it shall summon the defendant to appear before the magistrate or court at a stated time and place. It shall give notice to the person summoned that:
    1. The defendant is being charged with a state criminal offense;
    2. The summons is being issued in lieu of an arrest warrant;
    3. The failure to appear in court on the date and time specified is a separate criminal offense regardless of the disposition of the charge for which the person is originally summoned;
    4. Failure to appear for booking and processing is a separate criminal offense;
    5. An arrest warrant will issue for failure to appear for court or failure to appear for booking and processing;
    6. The failure to appear for court or failure to appear for booking and processing shall be punished as provided in § 39-16-609; and
    7. The defendant is encouraged to consult with an attorney about the summons.
  3. The summons shall be executed in triplicate and shall include a copy of the affidavit of complaint. When the summons is served, the original is to be returned to the court specified in the summons, one (1) copy, including a copy of the affidavit of complaint, given to the person summoned, and one (1) copy to be sent to the sheriff or other law enforcement agency in the county responsible for booking procedures.
  4. By accepting the summons, the defendant agrees to appear at the sheriff's department, or other law enforcement agency in the county responsible for booking procedures, to be booked and processed as directed by the sheriff's department or other responsible law enforcement agency. If the defendant fails to appear for booking and processing as directed, the court shall issue a bench warrant for that person's arrest. Failure to appear for booking and processing is a separate criminal offense and shall be punished as provided in § 39-16-609.
  5. The sheriff or other law enforcement agency in the county responsible for serving the summons shall provide the defendant with notice of a court time and date the defendant is to appear. The notice shall be given either at the time the summons is served or at the time the defendant is booked and processed, if booking and processing is ordered to occur prior to the first court date. The court date so assigned shall be not less than ten (10) calendar days nor more than forty-five (45) days from service of the summons or booking and processing, if booking and processing is ordered to occur prior to the first court date. The notice shall be explicit as to where and when the court is to convene and shall advise the defendant that the defendant is encouraged to consult with an attorney about the summons. The court clerk, sheriff, or other law enforcement agency shall provide notice to the affiant, or affiants in the case of multiple-affiants, of the date and time when the defendant is required to appear before the court.
  6. If the person summoned fails to appear in court on the date and time specified, the court shall issue a bench warrant for the person's arrest. Failure to appear for court is a separate criminal offense and shall be punished as provided in § 39-16-609.
  7. The summons shall have printed on it in conspicuous block letters the following:

    NOTICE: YOU ARE CHARGED WITH A STATE CRIMINAL OFFENSE. THIS SUMMONS HAS BEEN ISSUED IN LIEU OF AN ARREST WARRANT. YOUR FAILURE TO APPEAR IN COURT ON THE DAY AND TIME ASSIGNED BY THIS SUMMONS OR THE FAILURE TO APPEAR FOR BOOKING AND PROCESSING WILL RESULT IN YOUR ARREST FOR A SEPARATE CRIMINAL OFFENSE PUNISHABLE AS PROVIDED IN T.C.A.§ 39-16-609 REGARDLESS OF THE DISPOSITION OF THE CHARGE FOR WHICH YOU WERE ORIGINALLY SUMMONED. YOU ARE ENCOURAGED TO CONSULT WITH AN ATTORNEY ABOUT THIS SUMMONS. THE SIGNING AND ACCEPTANCE OF THIS SUMMONS IS NOT AN ADMISSION OF GUILT OF THE CRIMINAL OFFENSE.

  8. Each person receiving a summons under this section shall sign the summons indicating knowledge of the notice in subsection (g). The signing of the summons is not an admission of guilt of the criminal offense charged. The signature of each person creates the presumption of knowledge of the notice and a presumption to violate this section if the person should not appear in court as directed or for booking and processing. If the person to receive the summons refuses to sign and accept the summons, the person shall be taken immediately before a magistrate. The magistrate shall order the terms and conditions of the defendant's release to include the posting of bail as provided by chapter 11 of this title.
  9. At the initial or any subsequent appearance of a defendant before the court, the judge may order the posting of bail as provided by chapter 11 of this title, as a condition of the continued or further release of the defendant pending the disposition of the summons.
  10. The criminal summons shall be directed and served as provided by §§ 40-6-209 and 40-6-210 and shall be returned as provided by subsection (c).
  11. This section shall govern all aspects of the issuance of criminal summons, notwithstanding any provision of Rule 4 of the Tennessee Rules of Criminal Procedure to the contrary.
  12. If any subsection, paragraph, sentence, clause or phrase of this section is for any reason held or declared to be invalid, void, unlawful or unconstitutional, that decision shall not affect the validity of the remaining portions of this section.
  13. Notwithstanding this section, if the affiant to an affidavit of complaint for a criminal summons is the parent or legal guardian of a child who is the victim of alleged criminal conduct, no criminal summons shall issue to the affiant without the written approval of the district attorney general in the district in which the conduct occurred if:
    1. The person the affiant seeks to have issued a criminal summons was an employee of an local education agency (LEA) at the time of the alleged offense; and
    2. The affiant alleges that the LEA employee engaged in conduct that harmed the child of the affiant parent or legal guardian and, at the time of the conduct, the LEA employee had supervisory or disciplinary power over the child.

Acts 1977, ch. 225, § 1; T.C.A., § 40-716; Acts 2003, ch. 366, § 5; 2004, ch. 889, § 2; 2005, ch. 482, § 4; 2009, ch. 390, § 2; 2014, ch. 531, § 2.

Compiler's Notes. Acts 2014, ch. 531, § 3, provided that the act, which amended subsection (a), shall apply to all warrants of arrest and criminal summons issued before or after July 1, 2014.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.12.

Attorney General Opinions. Issuance of citations and arrest warrants by general sessions court clerks, OAG 00-044 (3/13/00).

If an individual is arrested by a private citizen for a public offense such as shoplifting, and if that individual is delivered to a law enforcement officer who takes the individual before a magistrate and becomes the affiant, the magistrate may issue a warrant of arrest instead of a criminal summons, OAG 03-153 (12/01/03).

Amendments to this section effective January 1, 2004, have no bearing on a citizen's statutory authority to make a warrantless arrest or on the existing authority of a law enforcement officer to sign an affidavit for an arrest warrant concerning an offense that occurred outside of the officer's presence, OAG 04-036 (3/12/04).

T.C.A § 40-6-215 does not apply to the issuance of probation violation warrants; the issuance of such warrants is governed by T.C.A. § 40-35-311(a), OAG 04-054 (3/26/04).

T.C.A. § 40-6-215 limits the authority of a clerk to issue warrants under Tenn. R. Crim P. Rule 4, OAG 04-085 (5/04/04).

Security guards issuing criminal summons or citations, OAG 07-002 (1/4/07).

Effect of Acts 2014, ch. 531 on arrests by private citizens, security officers; warrant requirements where affiant not a law enforcement officer. OAG 14-93, 2014 Tenn. AG LEXIS 96 (10/24/14).

40-6-216. Copies of warrants.

  1. A criminal defendant or such defendant's attorney shall have the right to request and receive at a reasonable time a copy of any warrant or summons issued pursuant to this part that is served upon the defendant.
  2. Any agency, department or employee or agent of an agency or department who knowingly refuses to provide a copy of the warrant of arrest or summons to a defendant or the defendant's attorney within a reasonable time upon being requested to do so may be in contempt of the court issuing the warrant or summons. In addition to the punishment for contempt, the agency or department shall be required to pay all attorney fees and court costs reasonably incurred by the defendant or the defendant's attorney in obtaining a copy of the warrant or summons.

Acts 1996, ch. 870, § 1; 1999, ch. 90, § 1; 2003, ch. 366, §§ 6, 7.

Cross-References. Contempt of court, title 29, ch. 9.

40-6-217. Issuance of arrest warrant in lieu of criminal summons.

Notwithstanding any other provision of this part or § 40-5-102, to the contrary, a judge who is licensed to practice law in this state and elected for an eight-year term of office may, upon a finding of probable cause, issue an arrest warrant in lieu of a criminal summons under any circumstances and regardless of whether any of the exceptions set out in §§ 40-6-205 and 40-6-215 are applicable.

Acts 2004, ch. 889, § 3.

Attorney General Opinions. Effect of Acts 2014, ch. 531 on arrests by private citizens, security officers; warrant requirements where affiant not a law enforcement officer. OAG 14-93, 2014 Tenn. AG LEXIS 96 (10/24/14).

Part 3
Wiretapping and Electronic Surveillance

40-6-301. Short title.

This part and §§ 39-13-60139-13-603 shall be known and may be cited as the “Wiretapping and Electronic Surveillance Act of 1994.”

Acts 1994, ch. 964, § 2.

Cross-References. Prohibited acts, § 39-13-601.

40-6-302. Legislative purpose.

  1. In order to protect the privacy of wire, oral, and electronic communications, to protect the integrity of court and administrative proceedings, to define, on a uniform basis, the circumstances under which a district attorney general may apply to a court of competent jurisdiction for the interception and use of wire, oral, and electronic communications, to define the circumstances under which a judge in a court of competent jurisdiction may authorize the interception and use of wire, oral and electronic communications, and to prohibit any unauthorized interception or use of those communications, it is necessary for the general assembly to define the circumstances and conditions under which the interception of wire, oral and electronic communications may be lawful. In defining these circumstances, the general assembly seeks to strike a balance between an individual's right to privacy and society's legitimate concern in being protected from criminal activity.
  2. In carrying out illegal activities, criminals often make extensive use of wire, oral and electronic communications. The lawful interception of these communications is an indispensable aid to investigative and law enforcement officials in obtaining evidence of illegal activities. Likewise, it is necessary for the general assembly to safeguard the privacy of innocent persons. Through this part and §§ 39-13-601 — 39-13-603, the general assembly seeks to prohibit the unauthorized interception of wire, oral and electronic communications and to prohibit the use of illegally obtained wire, oral and electronic communications as evidence in courts and administrative proceedings. The interception of wire, oral or electronic communications, therefore, when no party to the communications has consented to the interception, should be allowed only under compelling circumstances when authorized and supervised by a court of competent jurisdiction and upon a finding of probable cause. Court authorization and supervision ensures that the interception is made only in narrowly defined circumstances and that the information obtained will not be misused. The privacy rights of Tennessee citizens are further protected by limiting the interception of wire, oral, and electronic communications to certain major types of felonies under this code.

Acts 1994, ch. 964, § 1.

NOTES TO DECISIONS

1. Construction.

Court in a wiretapping damages suit erred by awarding less than $10,000 in statutory damages where the statute mandated that if the court found liability it did not have discretion to refuse an award of damages. Robinson v. Fulliton, 140 S.W.3d 312, 2003 Tenn. App. LEXIS 122 (Tenn. Ct. App. Feb. 14, 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 790 (Tenn. Sept. 2, 2003).

2. Expectation of Privacy.

Secretly videotaped conversations between a suspect and parents made while alone in a police interrogation room were inadmissible since the suspect had a reasonable expectation of privacy; however, the trial court's denial of a motion to suppress the videotapes was harmless error at the guilt phase of trial, but not at the sentencing phase of trial. State v. Munn, 56 S.W.3d 486, 2001 Tenn. LEXIS 630 (Tenn. 2001).

40-6-303. Definitions.

As used in this part and §§ 39-13-60139-13-603, unless the context otherwise requires:

  1. “Actual damages” means damages given as compensation; damages given as an equivalent for the injury done; damages in satisfaction of, or in recompense for, loss or injury sustained; those damages awarded to a person as compensation, indemnity, or restitution for harm sustained by the person;
  2. “Aggrieved person” means a person who was a party to an intercepted wire, oral or electronic communication, or a person against whom the interception was directed;
  3. “Attorney general and reporter” means the attorney general and reporter of Tennessee;
  4. “Contents,” when used with respect to any wire, oral or electronic communication, includes any information concerning the substance, purport or meaning of that communication;
  5. “Court of record” means any circuit or criminal court in the state of Tennessee;
  6. “District attorney general” means the district attorney general of any judicial district where jurisdiction exists to prosecute an offense that is grounds for an intercept order under § 40-6-305, or the judicial district where the interception of communications is to occur;
  7. “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by the aid of wire, radio, electromagnetic, photooptical or photoelectronic facilities, but does not include:
    1. Any wire or oral communication;
    2. Any communication made through a tone-only paging device; or
    3. Any communication from a “tracking device” as defined in 18 U.S.C. § 3117;
  8. “Electronic communications service” means any service which provides to users of the service the ability to send or receive wire or electronic communications;
  9. “Electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than:
    1. Any telephone or telegraph instrument, equipment or facility or any component thereof:
      1. Furnished to the subscriber or user by a provider of wire or electronic service in the ordinary course of business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business;
      2. Being used by a provider of wire or electronic communication service in the ordinary course of its business; or
      3. Being used by an investigative or law enforcement officer in the ordinary course of that officer's duties;
    2. A hearing aid or similar device being used to correct sub-normal hearing to not better than normal;
  10. “Electronic storage” means:
    1. Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission of the communication; and
    2. Any storage of communication by an electronic communication service for purposes of backup protection of that communication;
  11. “Intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device;
  12. “Investigative or law enforcement officer” means:
    1. In all counties having a population in excess of two hundred fifty thousand (250,000), according to the 1990 federal census or any subsequent federal census:
      1. Any officer of the state or a political subdivision of the state, who:
  1. Is empowered by law to conduct investigations of or to make arrests for offenses enumerated in § 40-6-305; and
  2. Has successfully completed a training course on the interception and use of wire, oral and electronic communications approved by the Tennessee peace officer standards and training commission or the Tennessee bureau of investigation; or

Any attorney authorized by law to prosecute those offenses; and

In all other counties:

An agent of the Tennessee bureau of investigation, who:

Is empowered by law to conduct investigations of or to make arrests for offenses enumerated in § 40-6-305; and

Has successfully completed a training course on the interception and use of wire, oral and electronic communications approved by the bureau; or

Any attorney authorized by law to prosecute those offenses;

“Judge of competent jurisdiction” means a judge presiding over any court of record as defined in this part and §§ 39-13-60139-13-603 in the state of Tennessee;

“Oral communication” means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation, but “oral communication” does not include any electronic communication;

“Pen register” means a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which the device is attached, but “pen register” does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communication services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business;

“Provider of wire or electronic communications service” means an entity which holds itself out to the public as engaged in the business of transmitting messages through the use of wire communication or electronic communication, as both terms are defined in this section;

“Readily accessible to the general public” means, with respect to a radio communication, that the communication is not:

Scrambled or encrypted;

Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communications;

Carried on a subcarrier or other signal subsidiary to a radio transmission; or

Transmitted over a communication system provided by a common carrier, unless the communication is a tone-only paging system communication;

“Recorded device” means the tangible medium upon which sounds and/or images are recorded or otherwise stored, which includes any original phonograph record, disk, tape, audio or video cassette, wire, film, or other medium now known or later developed on which sounds and/or images are or can be recorded or otherwise stored, or any copy or reproduction which duplicates, in whole or in part, the original; and

“Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station, furnished or operated by any person engaged as a provider of wire or electronic communications service in providing or operating those facilities for the transmission of communications.

Acts 1994, ch. 964, § 3; 1996, ch. 903, § 1; 2006, ch. 777, § 1; 2009, ch. 440, §§ 1, 2.

Compiler's Notes. 18 U.S.C. § 3117, referred to in this section, concerns mobile tracking devices.

For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

NOTES TO DECISIONS

1. “Intercept.”

Unless an e-mail is actually acquired in its split second transmission over a computer network, it cannot be “intercepted” as that term is reasonably understood. Cardinal Health 414, Inc. v. Adams, 582 F. Supp. 2d 967, 2008 U.S. Dist. LEXIS 84713 (M.D. Tenn. Oct. 10, 2008).

Company's allegations that defendants intercepted emails in violation of the Tennessee Wiretap Act (TWA), T.C.A. § 39-13-601 et seq., and the Federal Wiretap Act (FWA), 18 U.S.C. § 2510 et seq., were dismissed because the company had not pled sufficient factual allegations that the emails at issue were obtained contemporaneously with their transmission. Expert Janitorial, LLC v. Williams, — F. Supp. 2d —, 2010 U.S. Dist. LEXIS 23080 (E.D. Tenn. Mar. 12, 2010).

40-6-304. Order for electronic surveillance — Application — Required findings — Expiration of order — Recordings — Evidence — Motions to suppress.

  1. Each application for an order authorizing the interception of a wire, oral or electronic communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction in the district where the interception of a wire, oral or electronic communication is to occur, or in any district where jurisdiction exists to prosecute the underlying offense to support an intercept order under § 40-6-305. The application shall state the investigative or law enforcement officer's authority to make the application and shall include the following information:
    1. Identity of the investigative or law enforcement officer making the application, and the district attorney general authorizing the application;
    2. A full and complete statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that an order should be issued, including:
      1. Details as to the particular offense that has been, is being, or is about to be committed;
      2. A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;
      3. A particular description of the type of communications sought to be intercepted; and
      4. The identity of all persons, if known, committing the offense and whose communications are to be or may be intercepted;
    3. A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
    4. A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
    5. A full and complete statement of the facts concerning all previous applications known to the individuals authorizing and making the application, made to any judge for authorization to intercept wire, oral or electronic communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each application; and
    6. Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain results.
  2. The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.
  3. Upon an application the judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral or electronic communications within the district in which the judge is sitting, and outside that district but within this state in the case of a mobile interception device, if the judge determines on the basis of the facts submitted by the applicant that:
    1. There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in § 40-6-305;
    2. There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;
    3. Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and
    4. There is probable cause for belief that the facilities from which, or the place where, the wire, oral or electronic communications are to be intercepted are being used, or about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by the person.
    1. Each order authorizing the interception of any wire, oral or electronic communication under this part or §§ 39-13-601 — 39-13-603 shall specify:
      1. The identity of all persons, if known, whose communications are to be or may be intercepted;
      2. The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
      3. A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
      4. The identity of the agency authorized to intercept the communications, and the identity of the person authorizing the application; and
      5. The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
    2. An order authorizing the interception of a wire, oral or electronic communication under this part or §§ 39-13-601 — 39-13-603 shall, upon the request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish the applicant with all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the service provider, landlord, custodian, or person is according the person whose communications are to be intercepted. Any provider of wire or electronic communication service, landlord, custodian, or other person furnishing facilities or technical assistance shall be compensated by the applicant for reasonable expenses incurred in providing the facilities or assistance.
  4. No order entered under this section may authorize or approve the interception of any wire, oral or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty (30) days. The thirty-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten (10) days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (a) and the court making the findings required by subsection (c). The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty (30) days. Every order and extension of an order shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in a way as to minimize the interception of communications not otherwise subject to interception under this part or §§ 39-13-601 — 39-13-603, and must terminate upon attainment of the authorized objective, or in any event in thirty (30) days. In the event the intercepted communication is in a code or foreign language, and an expert in that code or foreign language is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after interception. An interception under this part or §§ 39-13-601 — 39-13-603 may be conducted in whole or in part by state personnel, or by an individual operating under a contract with the state, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.
    1. The contents of any wire, oral or electronic communication intercepted by any means authorized by this part or §§ 39-13-601 — 39-13-603 shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral or electronic communication under this subsection (f) shall be done in a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions of the order, the recordings shall be made available to the judge issuing the order and sealed under the judge's direction. All recordings of wire, oral or electronic communications shall be treated as confidential and shall not be open for inspection by members of the public. Custody of the recordings shall be wherever the judge orders. The recordings shall not be destroyed except upon an order of the issuing judge and in any event shall be kept for ten (10) years; provided, that upon the agreement of the person whose communications were intercepted, or that person's counsel, and the appropriate district attorney general, the issuing judge may order the destruction of all recordings at any time. Duplicate recordings may be made for use or disclosure, pursuant to § 40-6-306(a) and (b) for investigations, upon an order of the issuing judge. All duplicate recordings or written transcripts shall be treated as confidential and shall not be open for inspection by members of the public. Upon an order of the issuing judge, the contents of any wire, oral or electronic communication may be unsealed and used while giving testimony, pursuant to § 40-6-306(c). The presence of the seal provided for by this subsection (f), or a satisfactory explanation for the absence of the seal, shall be a prerequisite for the use or disclosure of the contents of any wire, oral or electronic communication or evidence derived therefrom under § 40-6-306(c). All wire, oral or electronic communications that are not disclosed while giving testimony retain their confidential character and shall not be open for inspection by members of the public. Immediately following duplication or use while giving testimony, the recordings shall be returned to the judge issuing the order and resealed under the judge's direction.
    2. Applications made and orders granted under this section shall be treated as confidential and shall not be open for inspection by members of the public. Applications and orders shall be sealed by the judge and custody shall be wherever the judge directs. The applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge and in any event shall be kept for ten (10) years. Upon the agreement of the person named in the order or application, or that person's counsel, and the appropriate district attorney general, the issuing judge may order the destruction of such applications and orders at any time.
    3. Any violation of this subsection (f) may be punished as contempt of the issuing or denying judge.
    4. Within a reasonable time, but not later than ninety (90) days after the termination of an order of approval under subsections (c) and (d), or an order authorizing an extension under subsection (e), or the denial of an order under subsection (c), the issuing or denying judge shall cause an inventory to be served on the persons named in the order or application and any other parties to intercepted communications as determined by the judge exercising judicial discretion in the interest of justice. The inventory shall include notice of:
      1. The fact of entry of the order or the application;
      2. The date of the entry and the period of authorized interception, or the denial of the application; and
      3. The fact that during the period wire, oral or electronic communications were or were not intercepted.
    5. The judge, upon the filing of a motion, may, in the judge's discretion, make available to the person or the person's counsel for inspection any portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction, the serving of the inventory required by this subsection (f) may be postponed for ninety (90) days. At the end of this period, the judge may allow additional ninety-day extensions, but only on further showing of good cause.
  5. The contents of any intercepted wire, oral or electronic communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a state court unless each party, not less than ten (10) days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized. This ten-day period may be waived by the judge if the judge finds that it was not possible to furnish the party with the information ten (10) days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving the information.
    1. Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the state of Tennessee or a political subdivision of the state may move to suppress the contents of any intercepted wire, oral or electronic communication, or evidence derived therefrom, on the grounds that:
      1. The communication was unlawfully intercepted;
      2. The order of authorization under which it was intercepted is insufficient on its face; or
      3. The interception was not made in conformity with the order of authorization. The motion shall be made before the trial, hearing or proceeding, unless there was no opportunity to make the motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire, oral or electronic communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this part or §§ 39-13-601 — 39-13-603. The judge, upon the filing of a motion by the aggrieved person, may, in the judge's discretion, make available portions of the intercepted communication, or evidence derived therefrom, as the judge determines to be in the interest of justice.
    2. In addition to any other right to appeal, the state has the right to appeal from an order granting a motion to suppress made under subdivision (h)(1), or the denial of an application for an order of approval, if the district attorney general certifies to the judge or other official granting the motion or denying the application that the appeal is not taken for purposes of delay. The appeal shall be taken within thirty (30) days after the date the order was entered and shall be diligently prosecuted.

Acts 1994, ch. 964, § 5; 2005, ch. 87, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

NOTES TO DECISIONS

1. Relationship With Federal Law.

Courts interpret T.C.A. § 40-6-304(a)(3) in light of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2518(1)(c) precedents. State v. Moore, 309 S.W.3d 512, 2009 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. Aug. 10, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 191 (Tenn. Feb. 22, 2010), cert. denied, Moore v. Tennessee, 562 U.S. 919, 131 S. Ct. 290, 178 L. Ed. 2d 190, 2010 U.S. LEXIS 7450 (U.S. 2010).

2. Requirements.

Electronic wiretap application contained a sufficient statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous; it set out, in detail, both general information about the difficulties involved in investigating a large drug trafficking organization and particular facts of the case which would indicate that wiretaps were not being routinely employed as the initial step in criminal investigation. State v. Moore, 309 S.W.3d 512, 2009 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. Aug. 10, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 191 (Tenn. Feb. 22, 2010), cert. denied, Moore v. Tennessee, 562 U.S. 919, 131 S. Ct. 290, 178 L. Ed. 2d 190, 2010 U.S. LEXIS 7450 (U.S. 2010).

Wiretapping and Electronic Surveillance Act, T.C.A. § 40-6-301 et seq., does not contain a per se requirement that an issuing judge be advised of call waiting or call forwarding features for minimization purposes; absent such a requirement, a party challenging police minimization procedures must address the specific procedures and calls at issue and demonstrate that monitoring was not conducted in a way as to minimize the interception of communications not otherwise subject to interception. State v. Moore, 309 S.W.3d 512, 2009 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. Aug. 10, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 191 (Tenn. Feb. 22, 2010), cert. denied, Moore v. Tennessee, 562 U.S. 919, 131 S. Ct. 290, 178 L. Ed. 2d 190, 2010 U.S. LEXIS 7450 (U.S. 2010).

Wiretap applications satisfied the requisite necessity requirement, as an officer explained the shortcomings of traditional investigative techniques if applied to the investigation of a major drug-trafficking organization, including specific facts and specific examples. State v. King, 437 S.W.3d 856, 2013 Tenn. Crim. App. LEXIS 821 (Tenn. Crim. App. Sept. 24, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 151 (Tenn. Feb. 12, 2014).

Because the evidence did not preponderate against the trial court finding that the wiretap application properly complied with the requirements for a wiretap application, defendant was not entitled to relief on his claim that the trial court erred in denying his motion to suppress evidence obtained pursuant to the application. State v. Bowley, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. July 12, 2019).

3. “Commonly Used.”

Wiretap application set forth a substantial basis from which the issuing court could find probable cause to believe that an individual was the person making telephone calls, based on information about the individual's drug-dealing activities, and pen register statistics; accordingly, the application established probable cause to believe that the individual commonly used the intercepted telephone. State v. King, 437 S.W.3d 856, 2013 Tenn. Crim. App. LEXIS 821 (Tenn. Crim. App. Sept. 24, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 151 (Tenn. Feb. 12, 2014).

4. Substantial Basis.

There was a substantial basis for the issuing court to find probable cause that defendant was involved in a conspiracy to possess 700 pounds or more of marijuana and that communications about the offense would be obtained by the interception of his cell phone records where the wiretap application contained information that six reliable confidential informants linked defendant to the conspiracy, 1,800 pounds of marijuana intended for a co-conspirator was seized, defendant was stopped by customs at an Arizona checkpoint near the Mexican border, and defendant had temporary housing near the Mexican border that was believed to be a stash house. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Information in the wiretap application provided a substantial basis for the issuing court to issue the order for an alleged co-conspirator's cell phone where during the intercepted call the unknown male tried to conceal that he and defendant were talking about another cell phone left for defendant by another co-conspirator and was speaking cryptically so as not to reveal his name and the officer stated that he believed that the target cell phone was a bat-phone being used by a co-conspirator. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Wiretap application established probable cause to believe that a co-conspirator was using the target phone where the co-conspirator told another person to call him back, the person made a call three minutes later to the target phone, and nothing showed that the co-conspirator received a call on his wiretapped phone from the other person's phone. Based on the particularly secretive nature of the drug operation and the conspirators'  established use of bat-phones to communicate about the operation, the application demonstrated probable cause to believe that the co-conspirator was using the target phone to commit the drug conspiracy. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Wiretap application set forth a substantial basis for the issuing court to conclude that defendant commonly used the target phone where he telephoned a co-conspirator from the target number and nothing in their conversation indicated that the co-conspirator had been trying to contact anyone other than defendant or that it was normally used by anyone other than defendant. The application also set forth a substantial basis to conclude that that communications related to the drug offense would be obtained through the wiretap. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

5. Standing.

This section did not give defendant standing to challenge the GPS tracking of a co-conspirator's phone where the order at issue was obtained pursuant to an application for a search warrant under Tenn. R. Crim. P. 41. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

6. Review.

After reviewing the briefs from the direct appeal, the evidence did not preponderate against the post-conviction court's finding that counsel fully briefed defendant's argument related to the probable cause requirement in the wiretapping statute, and that she addressed the subsections of that statute in her brief that she felt most strongly aided her argument that the wiretaps were unlawful; and, while the appellate court's decision limited defendant's argument, defendant did not show that counsel was ineffective in that regard as she made a strategic decision to focus her argument in the reply brief, which the appellate court would not second guess. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 571 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 671 (Tenn. Oct. 4, 2017).

40-6-305. Interception of communications for evidence of certain crimes.

A district attorney general may apply to a judge of competent jurisdiction for, and the judge may grant, in conformity with § 40-6-304, an order authorizing the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made when interception may provide evidence of:

  1. The commission of criminal homicide, as defined in § 39-13-201;
  2. Criminal conspiracy, as defined in § 39-12-103, to commit criminal homicide;
  3. The commission of a violation of § 39-17-417(j);
  4. The commission of, or conspiracy to commit, a criminal gang offense by a criminal gang member, as defined in § 40-35-121; or
  5. The commission of trafficking a person for a commercial sex act, as defined in § 39-13-309.

Acts 1994, ch. 964, § 6; 1996, ch. 680, § 1; 2011, ch. 493, § 1; 2015, ch. 435, § 1.

40-6-306. Disclosure of communications to law enforcement officers.

  1. Any investigative or law enforcement officer who, by any means authorized by this part or §§ 39-13-601 — 39-13-603, has obtained knowledge of the contents of any wire, oral or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
  2. Any investigative or law enforcement officer who, by any means authorized by this part or §§ 39-13-601 — 39-13-603, has obtained knowledge of the contents of any wire, oral or electronic communication or evidence derived therefrom may use the contents to the extent the use is appropriate to the proper performance of the officer's official duties.
  3. Any person who has received, by any means authorized by this part or §§ 39-13-601 — 39-13-603, any information concerning a wire, oral or electronic communication, or evidence derived therefrom, intercepted in accordance with this part or §§ 39-13-601 — 39-13-603 may disclose the contents of that communication or derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the state of Tennessee, or a political subdivision of the state, or of the United States, or a political subdivision of the United States.
  4. Nothing in this part or §§ 39-13-601 — 39-13-603 shall be construed as permitting the interception of a wire, oral or electronic communication that is made privileged by law unless the judge issuing the order for the interception finds probable cause to believe that all parties to the privileged communication are criminally responsible for the commission of a homicide offense, conspiracy to commit a homicide offense or commission of a violation of § 39-17-417(j).
  5. When an investigative or law enforcement officer, while engaged in intercepting wire, oral or electronic communications in the manner authorized in this part, intercepts wire, oral or electronic communications relating to offenses other than those specified in the order of authorization, the contents thereof and evidence derived therefrom, may be disclosed or used as provided in subsections (a) and (b). The contents and any evidence derived therefrom may be used under subsection (c) when authorized by a judge of competent jurisdiction where the judge finds on subsequent application that the contents were otherwise intercepted in accordance with this part or §§ 39-13-601 — 39-13-603. The application shall be made as soon as practicable after the interception.

Acts 1994, ch. 964, § 7; 1996, ch. 680, § 2.

40-6-307. Use of contents in evidence.

Whenever a wire, oral or electronic communication has been intercepted, no part of the contents of the communication and no evidence derived therefrom may be received in evidence in a trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state of Tennessee, or a political subdivision of the state if the disclosure of that information would be in violation of this part or §§ 39-13-60139-13-603.

Acts 1994, ch. 964, § 8.

40-6-308. Reports.

  1. Within thirty (30) days after the expiration of an order or each extension of an order entered under § 40-6-304(c) and (e), or the denial of an order approving an interception, the issuing or denying judge shall report to the attorney general and reporter:
    1. The fact that an order or extension was applied for;
    2. The kind of order or extension applied for;
    3. The fact that the order or extension was granted as applied for, was modified, or was denied;
    4. The period of interceptions authorized by the order and the number and duration of any extensions of the order;
    5. The offense specified in the order or application, or the extension of an order;
    6. The identity of the applying investigative or law enforcement officer or agency making the application and the person authorizing the application; and
    7. The nature of the facilities from which, or the place where, communications were to be intercepted.
  2. In January of each year the attorney general and reporter shall report to the administrative office of the United States courts, the speaker of the senate and the speaker of the house of representatives:
    1. The information required by subdivisions (a)(1)-(7) with respect to each application for an order or extension made during the preceding calendar year;
    2. A general description of the interceptions made under the order or extension, including:
      1. The approximate nature and frequency of incriminating communications intercepted;
      2. The approximate nature and frequency of other communications intercepted;
      3. The approximate number of persons whose communications were intercepted; and
      4. The approximate nature, amount, and cost of the manpower and other resources used in the interceptions;
    3. The number of arrests resulting from interceptions made under the order or extension, and the offenses for which arrests were made;
    4. The number of trials resulting from the interceptions;
    5. The number of motions to suppress made with respect to the interceptions, and the number granted or denied;
    6. The number of convictions resulting from the interceptions and the offenses for which the convictions were obtained and the general assessment of the importance of the interceptions; and
    7. The information required by subdivisions (b)(2)-(6) with respect to orders or extensions obtained in a preceding calendar year.
  3. Whenever an order authorizing interception is entered pursuant to § 40-6-304(c), the order shall require that reports be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Reports shall be made at ten-day intervals, with the first report required on the tenth day after the interception begins or is extended. However, in cases where orders for multiple telephones have been issued by a single judge and pertain to the same investigation, the issuing judge may direct that all progress reports be consolidated into a single report and filed at such times as directed by the judge.

Acts 1994, ch. 964, § 9; 2014, ch. 984, § 2.

NOTES TO DECISIONS

1. Motion to Suppress.

In a case in which two defendants appealed their convictions on various federal offenses for their part in a multi-defendant drug conspiracy in Tennessee, they unsuccessfully argued that the government violated the express terms of the state wiretap orders when they failed to present oral reports to the issuing state judge at the time that the written reports were submitted. They offered no factual or legal support for their argument that the appear and report language in the order required an oral presentation of the report. United States v. Smith, — F.3d —, 395 Fed. Appx. 223, 2010 FED App. 579N, 2010 U.S. App. LEXIS 18532 (6th Cir. Aug. 31, 2010).

40-6-309. Application of law.

Notwithstanding any other provision of law to the contrary, this part and §§ 39-13-60139-13-603 shall govern the interception and use of wire, oral and electronic communications in this state.

Acts 1994, ch. 964, § 12.

40-6-310. Construction of ambiguous provisions.

Any ambiguity in this part or §§ 39-13-60139-13-603 shall be resolved in favor of the aggrieved party and against the state.

Acts 1994, ch. 964, § 13.

40-6-311. Pen register or trap and trace order.

Any circuit or criminal court judge may issue a pen register or trap and trace order pursuant to the provisions and requirements of 18 U.S.C. § 3123 et seq.

Acts 1996, ch. 903, § 2.

Compiler's Notes. 18 U.S.C. § 3123, referred to in this section, concerns issuance of an order for a pen register or a trap and trace device.

Chapter 7
Arrest

Part 1
General Provisions

40-7-101. Persons by whom arrests made.

An arrest may be made either by:

  1. An officer under a warrant;
  2. An officer without a warrant; or
  3. A private person.

Code 1858, § 5032; Shan., § 6992; Code 1932, § 11531; T.C.A. (orig. ed.), § 40-801.

Cross-References. Authority of a police officer to arrest without a warrant, § 40-7-103.

Child, taking into custody, § 37-1-113.

Coroner's inquest, arrest after, §§ 38-5-115, 38-5-116.

Exemptions from arrest, national guardsmen, § 58-1-226.

Parole violator, arrest of, § 40-28-121.

Refusal of official to perform duties, § 39-16-402.

Society for prevention of cruelty to animals, authority of agents to make arrests, § 39-14-210.

Warrant, arrest on, title 40, ch. 6, part 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.8, 18.153, 18.161.

Law Reviews.

At the Intersection of Sovereignty and Contract: Traffic Cameras and the Privatization of Law Enforcement Power (William D. Mercer), 43 U. Mem. L. Rev. 379 (2012).

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

Attorney General Opinions. A law enforcement officer working off-duty retains full arrest powers, OAG 02-002 (1/2/02).

Security officers have the same power of arrest as that afforded to private citizens, OAG 03-018 (2/19/03).

Licensed security officers may make an arrest as private citizens as authorized under Tennessee law, OAG 03-148 (11/17/03); OAG 03-149 (11/17/03).

A search incident to an improper arrest may subject a private person, and possibly his or her employer, to liability, OAG 03-148 (11/17/03).

NOTES TO DECISIONS

1. Police Officer — Arrest Without Warrant.

A police officer cannot make an arrest, without a warrant, except for a felony, or for a violation of a city ordinance committed in his presence. Pesterfield v. Vickers, 43 Tenn. 205, 1866 Tenn. LEXIS 38 (1866); Hurd v. State, 119 Tenn. 583, 108 S.W. 1064, 1907 Tenn. LEXIS 24 (1907), questioned, State v. Ash, 12 S.W.3d 800, 1999 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. 1999).

2. Duties in Making Arrest.

An officer must act prudently, reasonably and use ordinary care in making arrests including the ascertainment that the right person is being arrested. State ex rel. Anderson v. Evatt, 63 Tenn. App. 322, 471 S.W.2d 949, 1971 Tenn. App. LEXIS 223 (Tenn. Ct. App. 1971).

40-7-102. Offense in presence of magistrate.

When a public offense is committed in the presence of a magistrate, the magistrate may, by verbal or written order, command any person to arrest the offender, and then proceed as if the offender had been brought before the magistrate on a warrant of arrest.

Code 1858, § 5036; Shan., § 6996; Code 1932, § 11535; T.C.A. (orig. ed.), § 40-802.

Cross-References. Officials designated as magistrates, § 40-1-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.8, 18.153.

Tennessee Jurisprudence, 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 23.

Law Reviews.

The Tennessee Court System — Municipal Courts, 8 Mem. St. U.L. Rev. 431.

40-7-103. Grounds for arrest by officer without warrant.

  1. An officer may, without a warrant, arrest a person:
    1. For a public offense committed or a breach of the peace threatened in the officer's presence;
    2. When the person has committed a felony, though not in the officer's presence;
    3. When a felony has in fact been committed, and the officer has reasonable cause for believing the person arrested has committed the felony;
    4. On a charge made, upon reasonable cause, of the commission of a felony by the person arrested;
    5. Who is attempting to commit suicide;
    6. At the scene of a traffic accident who is the driver of a vehicle involved in the accident when, based on personal investigation, the officer has probable cause to believe that the person has committed an offense under title 55, chapters 8 and 10. This subdivision (a)(6) shall not apply to traffic accidents in which no personal injury occurs or property damage is less than one thousand dollars ($1,000), unless the officer has probable cause to believe that the driver of the vehicle has committed an offense under § 55-10-401;
    7. Pursuant to § 36-3-619;
    8. Who is the driver of a vehicle involved in a traffic accident either at the scene of the accident or up to four (4) hours after the driver has been transported to a health care facility, if emergency medical treatment for the driver is required and the officer has probable cause to believe that the driver has violated § 55-10-401;
    9. When an officer has probable cause to believe a person has committed the offense of stalking, as prohibited by § 39-17-315;
    10. Who is the driver of a motor vehicle involved in a traffic accident, who leaves the scene of the accident, who is apprehended within four (4) hours of the accident, and the officer has probable cause to believe the driver has violated § 55-10-401; or
    11. Pursuant to § 55-10-119.
  2. If a law enforcement officer has probable cause to believe that a person has violated one (1) or more of the conditions of release imposed pursuant to § 40-11-150, and verifies that the alleged violator received notice of the conditions, the officer shall, without a warrant, arrest the alleged violator regardless of whether the violation was committed in or outside the presence of the officer.
  3. Unless a law enforcement officer has probable cause to believe that an offense has been committed, no officer, except members of the Tennessee highway patrol acting pursuant to § 4-7-104, shall have the authority to stop a motor vehicle for the sole purpose of examining or checking the license of the driver of the vehicle.

Code 1858, § 5037; Shan., § 6997; Code 1932, § 11536; Acts 1957, ch. 82, § 1; 1981, ch. 401, § 1; T.C.A. (orig. ed.), § 40-803; Acts 1986, ch. 754, § 1; 1990, ch. 980, § 18; 1993, ch. 484, § 1; 1994, ch. 1002, § 1; 1995, ch. 507, § 7; 1999, ch. 138, § 4; 2005, ch. 296, § 1; 2005, ch. 482, § 2; 2012, ch. 737, § 2.

Compiler's Notes. Acts 2012, ch. 737, § 5 provided that the act, which added subdivision (a)(11), shall be known and may be cited as the “Ricky Otts Act.”

Acts 2012, ch. 737, § 6 provided that the act, which added subdivision (a)(11), shall apply to prohibited conduct occurring on or after July 1, 2012.

Cross-References. Arrest for felony committed in another state, § 40-9-104.

Citation in lieu of arrest, Tenn. R. Crim. P. 3.5, § 40-7-118.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.8, 18.154, 18.155, 18.156, 18.157, 18.182.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-12-6.

Tennessee Jurisprudence, 10 Tenn. Juris., Arrest, §§ 4, 5; 13 Tenn. Juris., False Imprisonment, § 4.

Law Reviews.

Criminal Procedure — State v. Williams: Pretextual Vehicle Stops and the Fourth Amendment, 23 Mem. St. U.L. Rev. 421 (1993).

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

The Troubling Influence of Equality in Constitutional Criminal Procedure: From Brown to Miranda, Furman and Beyond, 54 Vand. L. Rev. 359 (2001).

Torts — Hurd v. Woolfork: The Public Duty Doctrine in Tennessee, 28 U. Mem. L. Rev. 1279 (1998).

Attorney General Opinions. Authority of law enforcement officers to make misdemeanor arrests, OAG 00-048 (3/16/00).

A law enforcement officer, having observed the commission of a felony, may choose not to arrest or charge the offending party, except when the officer has probable cause to believe that a suspect has violated an order of protection, OAG 01-119 (7/27/01).

Constitutionality of proposed amendment that would permit an officer to make arrest “for a misdemeanor, if the officer has probable cause and the person accused does not offer satisfactory evidence of identification,” OAG 03-052 (4/24/03).

Police officer who receives specific information about unlawful conduct from another officer can make a warrantless arrest and issue a citation to a misdemeanant even though the misdemeanor was not committed in the presence of the arresting officer, OAG 08-181 (12/1/08).

NOTES TO DECISIONS

1. In General.

This section is an embodiment of the common law. Galvin v. State, 46 Tenn. 283, 1869 Tenn. LEXIS 56 (1869); Tenpenny v. State, 151 Tenn. 669, 270 S.W. 989, 1924 Tenn. LEXIS 94 (1925), overruled in part, State v. Parker, 525 S.W.2d 128, 1975 Tenn. LEXIS 651 (Tenn. 1975).

The test for a lawful warrantless arrest is whether the facts and circumstances present are sufficient to enable the court to see that some offense has been committed that would have justified a legal arrest. State v. Duer, 616 S.W.2d 614, 1981 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. 1981).

The limitation on warrantless arrests for misdemeanors in T.C.A § 40-7-103 is not constitutionally required. State v. Bryant, 678 S.W.2d 480, 1984 Tenn. Crim. App. LEXIS 2528 (Tenn. Crim. App. 1984).

2. Officer's Presence.

Where defendant was guilty of committing a misdemeanor of the nature of a public offense and a threatened breach of the peace in the presence of an officer at the time validly issued search warrants were served on him, no warrant was necessary for his arrest. Solomon v. State, 203 Tenn. 583, 315 S.W.2d 99, 1958 Tenn. LEXIS 335 (1958), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

The use of the “police team” approach, which provides that an act taking place within the view of one officer is in legal effect within the presence and view of other cooperating officers, is a viable doctrine in Tennessee. State v. Ash, 12 S.W.3d 800, 1999 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. 1999).

3. —Offense Committed.

Public drunkenness and driving while drunk are public offenses for which an officer may arrest without a warrant if committed in his presence, but such officer does not have the right to shoot the offender or to endanger his life by shooting into the automobile to stop it and effect the arrest. State ex rel. Harbin v. Dunn, 39 Tenn. App. 190, 282 S.W.2d 203, 1943 Tenn. App. LEXIS 157 (Tenn. Ct. App. 1943).

Officer had probable cause to arrest defendant for the felony offense of possessing with intent to deliver or sell heroin where at the moment that the officer put defendant in handcuffs, he knew the driver had stated that defendant put heroin in her pants, defendant was acting nervously, defendant's actions were inconsistent with his statement that he did not have identification, and defendant had a large amount of cash in his pocket. United States v. Jackson, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 165010 (E.D. Tenn. Nov. 24, 2014), aff'd, — F.3d — , 663 Fed. Appx. 426, 2016 FED App. 569N, 2016 U.S. App. LEXIS 18545 (6th Cir. Tenn. 2016).

4. — —Criminal Trespass.

The “police team” approach may be applied where arresting officers witness defendant's presence on the property, but learn of the fact that the defendant had been previously warned to stay off the property from a list generated by the police for officers patrolling the area. State v. Ash, 12 S.W.3d 800, 1999 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. 1999).

Despite list indicating that defendant was served with a letter barring him from entering property, evidence did not show that defendant knew that he did not have the owner's effective consent to be on the property and, therefore, did not show that criminal trespass was being committed in the presence of police officers. State v. Ash, 12 S.W.3d 800, 1999 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. 1999).

5. — —Public Intoxication.

One who so conducts himself in public as to justify the impression that he is drunk, whether he does so purposely or otherwise, subjects himself to lawful arrest without warrant, even though he is in fact sober. Goodwin v. State, 148 Tenn. 682, 257 S.W. 79, 1923 Tenn. LEXIS 55 (1924).

Defendant, a duly elected constable, did not have reasonable cause to believe plaintiff was publicly intoxicated where he observed plaintiff staggering, smelled of alcohol and knew plaintiff had been arrested before for public intoxication, when eight witnesses testified plaintiff was not intoxicated. Ford v. Wells, 347 F. Supp. 1026, 1972 U.S. Dist. LEXIS 13699 (E.D. Tenn. 1972).

6. — —Sale of Intoxicants.

Where officer was sold pint of unstamped whiskey it was proper for officer to arrest woman making sale and also her husband who was asleep in house at time. Atkins v. Harris, 202 Tenn. 489, 304 S.W.2d 650, 1957 Tenn. LEXIS 414 (1957).

7. — —Speeding.

Officer, determining speed of vehicle by radar, could arrest motorist for speeding. Hardaway v. State, 202 Tenn. 94, 302 S.W.2d 351, 1957 Tenn. LEXIS 366 (1957).

T.C.A. § 40-7-103 does not deprive a pursuing officer, who has grounds upon which to arrest a fleeing offender, of the assistance of a fellow officer when that assistance is requested in a reliable manner. The rule creates no right to escape. State v. Bryant, 678 S.W.2d 480, 1984 Tenn. Crim. App. LEXIS 2528 (Tenn. Crim. App. 1984).

8. — —Transportation of Intoxicants.

A sheriff and his deputy had the right, without a warrant, to halt one violating the law by transporting 60 gallons of whiskey over the public roads of the state, in the presence of the officers. Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

A person who was engaged in transporting liquor did not commit the offense in the presence of an officer, so as to authorize the officer to arrest him without warrant, where the liquor was concealed from the officer's sight prior to the arrest and the officer did not know that the law was being violated. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

Where arresting officers received information of proposed shipment of whiskey and placed themselves in position to witness loading of truck and transporting of whiskey to point near state line, search of truck pursuant to arrest was not illegal although made without warrant. Evans v. Pearson, 193 Tenn. 528, 246 S.W.2d 964, 1952 Tenn. LEXIS 321 (1952).

Possibility that defendant, a known liquor law violator, might be carrying tax-unpaid whiskey, since there was a bulge in the loose jacket worn by the defendant, was not sufficient, and arrest of defendant without a warrant was invalid. United States v. Sipes, 132 F. Supp. 537, 1955 U.S. Dist. LEXIS 3059 (D. Tenn. 1955).

Officer who observed defendant speeding recklessly was justified in arresting defendant for felony of transporting more than one gallon of liquor, where liquor was plainly visible when automobile was stopped. Batchelor v. State, 213 Tenn. 649, 378 S.W.2d 751, 1964 Tenn. LEXIS 433 (1964).

9. — —Suspected Violation.

Where an officer sees the accused enter a house of questionable reputation, with a package partially concealed by a raincoat, and, on the approach of the officer, the accused jumps into an automobile and flees, and, on being overtaken, whiskey in broken jars is discovered in his possession, the officer is justified in arresting the accused, under this section, and the evidence thus obtained is admissible against the accused. Farmer v. State, 148 Tenn. 216, 254 S.W. 552, 1923 Tenn. LEXIS 9 (1923).

Where officers observed liquor bottle partly hidden under defendant's belt and searched him, discovering whiskey and vodka, and thereupon arrested him, search and arrest were part of the same transaction and search was proper as arrest was valid for a breach of the peace committed in the presence of the officers. Warden v. State, 214 Tenn. 314, 379 S.W.2d 788, 1964 Tenn. LEXIS 479 (1964).

10. —Threatened Breach of Peace.

If a private policeman, on reasonable grounds, believed that a person was about to commit a breach of peace by making an attack on a home which the policeman was hired to guard, he had the lawful right to arrest the person. Terry v. Burford, 131 Tenn. 451, 175 S.W. 538, 1914 Tenn. LEXIS 121, L.R.A. (n.s.) 1915F714 (1915).

The right of the sheriff to arrest, without warrant, for the threatened unlawful sale of intoxicating liquors, and to close the place of business, is not unlawful as an arbitrary invasion of property rights, which are not more sacred than the person which may be seized to prevent a breach of the peace. State ex rel. Thompson v. Reichman, 135 Tenn. 653, 188 S.W. 225, 1916 Tenn. LEXIS 46 (1916), rehearing denied, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

There is a very clear distinction between the act of an officer entering a man's home to discover evidence as a means of penalizing him, or the act of an officer apprehending a citizen on the highway for the purpose of discovering evidence to penalize him, and the act of arresting one who is threatening a breach of the peace, or is at the time engaged in a violation of the law. Farmer v. State, 148 Tenn. 216, 254 S.W. 552, 1923 Tenn. LEXIS 9 (1923).

11. — —“Breach of Peace” Construed.

“Breach of the peace” is a generic term including all violations of public peace or order, and includes unlawful sale, actual or threatened, of intoxicating liquors. State ex rel. Thompson v. Reichman, 135 Tenn. 653, 188 S.W. 225, 1916 Tenn. LEXIS 46 (1916), rehearing denied, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916); Gray v. State, 207 Tenn. 39, 336 S.W.2d 22, 1960 Tenn. LEXIS 405 (1960); Warden v. State, 214 Tenn. 314, 379 S.W.2d 788, 1964 Tenn. LEXIS 479 (1964).

It is a breach of the peace for one having liquors to prepare for the sale thereof, because that is a threat to violate the law against sales thereof. State ex rel. Thompson v. Reichman, 135 Tenn. 653, 188 S.W. 225, 1916 Tenn. LEXIS 46 (1916), rehearing denied, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

Loud talking in the kitchen of one's home, heard by officers in passing, not a word of which they understood, was no commission or threatened commission of a breach of peace in their presence or hearing, there being no showing that the inmates were intoxicated or disorderly. Lucarini v. State, 159 Tenn. 373, 19 S.W.2d 239, 1928 Tenn. LEXIS 93 (1929).

12. Misdemeanor Not in Officer's Presence.

A city ordinance authorizing police officers to arrest persons for misdemeanors not committed in their presence was void as inconsistent with the general law of the land. Pesterfield v. Vickers, 43 Tenn. 205, 1866 Tenn. LEXIS 38 (1866).

Officer has no authority to arrest one for the misdemeanor of unlawfully carrying a pistol or for other misdemeanors, not committed in his presence, but the commission of which is communicated to him by others, unless he has a warrant of arrest. Pesterfield v. Vickers, 43 Tenn. 205, 1866 Tenn. LEXIS 38 (1866); Hurd v. State, 119 Tenn. 583, 108 S.W. 1064, 1907 Tenn. LEXIS 24 (1907), questioned, State v. Ash, 12 S.W.3d 800, 1999 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. 1999).

An officer cannot arrest a person for a misdemeanor not committed in his presence without a proper warrant for such arrest. Shelton v. State, 3 Tenn. Crim. App. 310, 460 S.W.2d 869, 1970 Tenn. Crim. App. LEXIS 458 (Tenn. Crim. App. 1970); State v. Duer, 616 S.W.2d 614, 1981 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. 1981).

13. Reasonable Cause.

An arrest by an officer without warrant is not justified by the fact that the officer had information leading him to believe that an offense was being committed. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

Finding an unattended automobile parked in a dark alley, when it might have been left in the street under the protection of street lights, and discovery of several tin cans of one gallon capacity and a disarranged condition of the rear seat cushion upon throwing a flash light on the car were sufficient to create a reasonable belief that the automobile was being used for an unlawful purpose, most probably the transportation of whiskey. Smith v. State, 155 Tenn. 40, 290 S.W. 4, 1926 Tenn. LEXIS 17 (1927).

An officer may lawfully proceed to arrest without a warrant any person when the officer has, with reasonable cause, been led to believe that the person has committed, is committing, or is about to commit, a felony. Dittberner v. State, 155 Tenn. 102, 291 S.W. 839, 1926 Tenn. LEXIS 24 (1927); Davis v. State, 2 Tenn. Crim. App. 297, 453 S.W.2d 438, 1970 Tenn. Crim. App. LEXIS 480 (1970).

Where a policeman saw defendant take a fruit jar from an automobile and conceal it beneath his coat while carrying it into a building in the vicinity of which there had been numerous complaints with respect to the transportation of whiskey, he had probable cause for believing that a felony was being committed. Suggs v. State, 156 Tenn. 303, 300 S.W. 4, 1927 Tenn. LEXIS 118 (1927).

Where officers, while standing on the sidewalk, detected a very strong odor of mash and corn whiskey which seemed to come from a certain building, there was ground for reasonable belief that a felony was being committed. Massa v. State, 159 Tenn. 428, 19 S.W.2d 248, 1928 Tenn. LEXIS 101 (1929).

Where defendant was chased and arrested without a warrant by police officers on suspicion that defendant was bringing whiskey into town, it was error for trial court to deny crossexamination of officer by defendant's counsel as to where officer had secured information that defendant intended to bring whiskey into town. Smith v. State, 169 Tenn. 633, 90 S.W.2d 523, 1935 Tenn. LEXIS 90 (1936).

Where informant informed sheriff that defendants had gone after liquor and the sheriff immediately went in pursuit of defendants, and where sheriff testified that the informant was a rival bootlegger of defendants and further that he had known informant for a long time and that informant had always told him the truth, the sheriff had “reasonable cause” to believe that defendants were committing a felony and was justified in making an arrest for felonious transportation of intoxicating liquors without a warrant. Vaughn v. State, 178 Tenn. 384, 158 S.W.2d 715, 1941 Tenn. LEXIS 69 (1942).

An arrest by officers without a warrant was valid where the person arrested was in the company of a known car thief, and was driving a car which was thought to be stolen and where on arrest he denied knowing the car thief and denied that he was associated with the stolen car. Brubaker v. United States, 183 F.2d 894, 1950 U.S. App. LEXIS 3024 (6th Cir. Tenn. 1950).

Arrest of truck driver without a warrant was justified where officers had information that defendant was going to drive a truck to Illinois to pick up cargo of whiskey, that truck by observation of officers had a false bottom, that truck approached Tennessee by a circuitous route, and that it proceeded up a slight incline in low gear on entrance into Tennessee. Barnett v. State, 191 Tenn. 420, 234 S.W.2d 833, 1950 Tenn. LEXIS 453 (1950).

Where highway patrolmen proceeded to house to investigate complaint and upon arrival within proximity of house observed man with sack in his hand and such individual dropped the sack and ran with a jug and officers observed a number of people coming and going and one person in front of house was observed taking a drink from a bottle or jug, action of officers who searched house and found illegal whiskey, homebrew and wine and made arrests was justified. Gray v. State, 207 Tenn. 39, 336 S.W.2d 22, 1960 Tenn. LEXIS 405 (1960).

Information that automobile “had whiskey in it” did not authorize warrantless arrest of driver for felony of transporting more than one gallon of liquor. Batchelor v. State, 213 Tenn. 649, 378 S.W.2d 751, 1964 Tenn. LEXIS 433 (1964).

Where arresting officer had information regarding possible thefts from telephone booths in the area, that one of the persons arrested was suspected, and had license number of such person's automobile, arrest without warrant was lawful. Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, 1964 Tenn. LEXIS 523 (1964), cert. denied, Thomerson v. Tennessee, 380 U.S. 933, 85 S. Ct. 938, 13 L. Ed. 2d 820, 1965 U.S. LEXIS 1692 (1965).

Arrest of defendants and search of their persons and automobile was proper where police officers received description corresponding to defendants of persons who allegedly robbed telephone booth a short distance away and were observed by officers near another telephone booth under suspicious circumstances. Graham v. State, 218 Tenn. 453, 404 S.W.2d 475, 1966 Tenn. LEXIS 643 (1966).

Arrest and search was legal where officers observed dice game in process through windows of premises after being on scene because of complaints of disorderly conduct and the facts were such as to indicate that one of the participants was engaged in the felony of professional gambling. Alley v. State, 218 Tenn. 497, 404 S.W.2d 493, 1966 Tenn. LEXIS 583 (1966).

An officer may arrest without a warrant where a person has committed a felony and there is reasonable cause for believing the person arrested to have committed it. State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165, 1966 Tenn. LEXIS 625 (1966); State ex rel. Smith v. Henderson, 1 Tenn. Crim. App. 593, 447 S.W.2d 880, 1969 Tenn. Crim. App. LEXIS 342 (1969).

Where police officers stopped vehicle on suspicion of having an illegal city inspection sticker, and then recognized driver as having been involved before in illicit liquor and then smelling moonshine whiskey, such facts represented reasonable grounds to suspect that car was being used to transport illegal whiskey and to search the car trunk and to arrest driver for violation of state and federal liquor laws. United States v. Thompson, 409 F.2d 113, 1969 U.S. App. LEXIS 12969 (6th Cir. Tenn. 1969).

Where reliable informant gave police officers information to effect that old model green automobile of specified make would pass specified intersection between 7:00 and 8:00 a.m., driven by man with physical defect carrying unstamped liquor, and officers saw man whom they knew had such a physical defect pass intersection at 8:45 a.m. driving green automobile with white top of the specified make, probable cause existed for arrest of defendant for felony even though description of automobile was general and automobile arrived 45 minutes later than specified. State v. Tolden, 224 Tenn. 119, 451 S.W.2d 432, 1969 Tenn. LEXIS 476 (1969).

Where shortly after robbery was committed defendants entered service station to buy gasoline and officers who heard description of robbers and automobile on radio observed that the passengers and the automobile fitted such description and further observed paper sack inside automobile filled with money, officers were warranted in making arrest without warrant on probable cause and in searching automobile. Raynor v. State, 1 Tenn. Crim. App. 556, 447 S.W.2d 391, 1969 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. 1969).

Where informant upon whom officer had previously relied told officer that specifically described van would be traveling in a certain direction and that the three occupants would be transporting heroin for sale officer had probable cause to search such vehicle without a warrant. Peters v. State, 521 S.W.2d 233, 1974 Tenn. Crim. App. LEXIS 252 (Tenn. Crim. App. 1974).

Police officers who knew that a felony had been committed and that defendant fitted the detailed description of the person who committed that felony had reasonable cause to arrest defendant, and things found on his person at that time were not products of an illegal search. State v. Jefferson, 529 S.W.2d 674, 1975 Tenn. LEXIS 582 (Tenn. 1975), rehearing denied, , 529 S.W.2d 674, 1975 Tenn. LEXIS 583 (Tenn. 1975), overruled in part, State v. Mitchell, 593 S.W.2d 280, 1980 Tenn. LEXIS 395 (Tenn. 1980).

Where initial apprehension of defendant was with his own consent and for his own protection, and where subsequent information gathered by police led them to believe defendant was the prime suspect, police had reasonable cause to place defendant in “arrest status” and statement rendered by defendant thereafter was product of legal arrest. Scharff v. State, 551 S.W.2d 671, 1977 Tenn. LEXIS 525 (Tenn. 1977).

Officers who had positive information that a felony had been committed and a description of the suspect and his vehicle had reasonable cause to arrest the occupants and search a vehicle matching those descriptions. Schultz v. State, 584 S.W.2d 223, 1979 Tenn. Crim. App. LEXIS 257 (Tenn. Crim. App. 1979).

In action for false arrest and imprisonment, a charge that the only question for the jury's determination was whether the officer had reasonable cause to believe that a felony may have been committed or probably had been committed and that plaintiff “may” have committed such felony was improper since “may” connotes a possibility as opposed to a probability that plaintiff committed the felony. Woods v. Harrell, 596 S.W.2d 92, 1979 Tenn. App. LEXIS 393 (Tenn. Ct. App. 1979).

Where photographs of defendant's car were shown to some of the witnesses of a murder who identified them as pictures of the car they saw leaving the scene of the crime and the defendant's own physical appearance agreed with the description of the murderer given by the witnesses, under these facts the officers, acting as reasonably prudent persons, had reasonable cause for believing defendant committed the crime of murder and to arrest him. State v. Donald, 614 S.W.2d 66, 1980 Tenn. Crim. App. LEXIS 351 (Tenn. Crim. App. 1980).

Police had probable cause to arrest when, acting on information that defendants had killed the deceased and left his body in a truck, they found the body, immediately went to defendants' trailer, discovered that they were not there, and went to a motel where they arrested the defendants. State v. Wright, 618 S.W.2d 310, 1981 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. 1981).

Where the officers were present in a helicopter at 1,800 feet above the terrain, within the navigable air space of the United States, a place they had a perfect legal right to be and from their vantage point they observed unharvested marijuana in the field, and as they approached, they saw defendants tending their crop, having observed a felony being committed in their presence, the officers clearly were justified in descending to the ground to arrest the defendants. State v. Layne, 623 S.W.2d 629, 1981 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. 1981), overruled, State v. Holt, 691 S.W.2d 520, 1984 Tenn. LEXIS 865 (Tenn. 1984).

Facts and circumstances were sufficient to show probable cause. Wadley v. State, 634 S.W.2d 658, 1982 Tenn. Crim. App. LEXIS 435 (Tenn. Crim. App. 1982); State v. Melson, 638 S.W.2d 342, 1982 Tenn. LEXIS 431 (Tenn. 1982), cert. denied, Melson v. Tennessee, 459 U.S. 1137, 103 S. Ct. 770, 74 L. Ed. 2d 983 (1983); State v. Evetts, 670 S.W.2d 640, 1984 Tenn. Crim. App. LEXIS 2333 (Tenn. Crim. App. 1984); State v. Kyger, 787 S.W.2d 13, 1989 Tenn. Crim. App. LEXIS 690 (Tenn. Crim. App. 1989), rehearing denied, — S.W.2d —, 1989 Tenn. Crim. App. LEXIS 757 (Tenn. Crim. App. Oct. 24, 1989).

Merely stopping a vehicle on reasonable suspicion to investigate a crime does not necessarily constitute an arrest. State v. Blankenship, 757 S.W.2d 354, 1988 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1988).

Although officer testified he was motivated to pull behind the vehicle because of a prior radio report of a misdemeanor, if his actions were reasonable on other grounds, even if the reasons were not articulated by the officer, the stop, and arrest resulting therefrom, would be legal. State v. Smith, 787 S.W.2d 34, 1989 Tenn. Crim. App. LEXIS 883 (Tenn. Crim. App. 1989), appeal denied, 1990 Tenn. LEXIS 143 (Tenn. Apr. 2, 1990).

Police officers had the required reasonable suspicion, supported by specific and articulable facts, that the defendant was in possession of an illegal substance; therefore, the stop and arrest of the defendant was warranted. State v. Little, 854 S.W.2d 643, 1992 Tenn. Crim. App. LEXIS 404 (Tenn. Crim. App. 1992).

It was unreasonable for an officer, not a member of the highway patrol, to make an investigative stop of a vehicle belonging to the officer's brother, even though he did not recognize the driver. State v. Norword, 938 S.W.2d 23, 1996 Tenn. Crim. App. LEXIS 511 (Tenn. Crim. App. 1996).

Police did not have probable cause for defendant's warrantless arrest where officers had been told by defendant's wife that she suspected him of forgery and that there had been “inappropriate conduct” between the defendant and his daughter but the wife did not give the officers any details concerning either charge. State v. Johnson, 980 S.W.2d 414, 1998 Tenn. Crim. App. LEXIS 872 (Tenn. Crim. App. 1998).

14. —Construed.

It is impossible to define “reasonable cause” in terms to fit all cases arising and each case must stand on its own facts. State v. Tolden, 224 Tenn. 119, 451 S.W.2d 432, 1969 Tenn. LEXIS 476 (1969).

Although information received from anonymous informants is not alone sufficient to constitute probable cause for an arrest, it may be considered along with other facts and circumstances known to the officer and may be added to the mix which will later be viewed for a determination of the existence of probable cause. Greer v. State, 1 Tenn. Crim. App. 407, 443 S.W.2d 681, 1969 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. 1969).

In determining probable cause for making an arrest, all information in the officer's presence, fair inferences therefrom, and observations including past experience are generally pertinent. Greer v. State, 1 Tenn. Crim. App. 407, 443 S.W.2d 681, 1969 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. 1969).

Reasonable cause or probable cause is such as would justify a reasonable man in believing that the person arrested was guilty of a felony. Campbell v. State, 1 Tenn. Crim. App. 586, 447 S.W.2d 877, 1969 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. 1969); Davis v. State, 2 Tenn. Crim. App. 297, 453 S.W.2d 438, 1970 Tenn. Crim. App. LEXIS 480 (1970).

The test to determine probable cause to make an arrest should be equally as stringent as the test to determine whether probable cause exists to issue a search warrant. State v. Tays, 836 S.W.2d 596, 1992 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. 1992).

Probable cause exists if the facts and circumstances within the officer's knowledge at the time of the arrest, and of which the officer had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. State v. Henning, 975 S.W.2d 290, 1998 Tenn. LEXIS 370 (Tenn. 1998).

15. —Reasonable Cause and Improper Cause Both Present.

When an officer makes an arrest which is supported by probable cause, then neither his subjective reliance on an offense for which probable cause does not exist nor his statement of the wrong offense to the person arrested will transform the arrest into an illegal arrest. State v. Duer, 616 S.W.2d 614, 1981 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. 1981).

16. Exigent Circumstances.

Tennessee law authorizes the warrantless arrest of a suspect when a felony has in fact been committed and the officer has reasonable cause for believing the person arrested to have committed it; there is no recognized requirement that the probable cause necessary for a valid warrantless arrest be accompanied by “exigent circumstances.” Howard v. State, 599 S.W.2d 280, 1980 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. 1980).

17. Charge Made.

By the common law, a peace officer may make an arrest on a charge of felony, upon a reasonable cause of suspicion, without a warrant, although it should afterwards turn out that no felony had, in fact, been committed, and this principle of the common law is distinctly incorporated in this section. Lewis v. State, 40 Tenn. 127, 1859 Tenn. LEXIS 38 (1859).

An officer may justify an arrest made by him for a felony not committed in his presence, by showing that a charge had been made of the commission of a felony, and that he had reasonable cause to believe that such felony had been committed, and that the person arrested had committed it. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

An officer is not required to wait for assurance of evidence which would convict, but whenever circumstances fairly point to a felony it is his duty to act and act promptly. Vaughn v. State, 178 Tenn. 384, 158 S.W.2d 715, 1941 Tenn. LEXIS 69 (1942).

The information must be such as would justify a reasonable man in believing that the particular person arrested was guilty of a felony. Thompson v. State, 185 Tenn. 73, 203 S.W.2d 361, 1947 Tenn. LEXIS 301 (1947).

Trial court was justified in not requiring officer to reveal name of informer, where the officer outside the presence of the jury testified that prior information revealed by informer had been accurate, and that the information leading to the particular arrest without a warrant was correct as to amount of liquor, route, and description of automobile. Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487, 1955 Tenn. LEXIS 410 (1955), overruled in part, Kersey v. State, 525 S.W.2d 139, 1975 Tenn. LEXIS 654 (Tenn. 1975), overruled in part, Waters v. Coker, — S.W.3d —, 2006 Tenn. App. LEXIS 443 (Tenn. Ct. App. June 29, 2006).

There was probable cause for the arrest of one who was pointed out to the officer by one who charged that he had passed a counterfeit federal reserve note to him a few minutes before. United States v. Masini, 358 F.2d 100, 1966 U.S. App. LEXIS 6764 (6th Cir. Tenn. 1966).

Information received by the officer that the defendants were suspicious persons, and that there was a possibility that they might have committed a felony, and there had been no information received that a felony had been committed, was not sufficient to sustain the legality of an arrest without a warrant. Harris v. State, 219 Tenn. 459, 410 S.W.2d 876, 1967 Tenn. LEXIS 365 (1967).

Information from petitioner's victim and his codefendant that a felony had been committed and that petitioner committed it was sufficient to allow officers to arrest on probable cause without an arrest warrant. Gentry v. Neil, 310 F. Supp. 791, 1970 U.S. Dist. LEXIS 12186 (E.D. Tenn. 1970).

Where prisoner under investigation for robberies told officers that defendants were involved in such robberies and other robberies, arrests of defendants without warrants were lawful. Garner v. State, 4 Tenn. Crim. App. 189, 469 S.W.2d 542, 1971 Tenn. Crim. App. LEXIS 494 (Tenn. Crim. App. 1971).

Officers who were stopped by a man who told them he had been robbed and threatened and pointed out the men who did it had adequate reason for arresting the men, and evidence obtained from a search of their truck was admissible against them. Cole v. State, 4 Tenn. Crim. App. 645, 475 S.W.2d 196, 1971 Tenn. Crim. App. LEXIS 436 (Tenn. Crim. App. 1971).

The Aguilar-Spinelli (Aguilar v. Texas, 12 L. Ed. 2d 723, 84 S. Ct. 1509, 378 U.S. 108, 1964 U.S. LEXIS 994 (1974); Spinelli v. United States, 21 L. Ed. 2d 637, 89 S. Ct. 584, 393 U.S. 410, 1969 U.S. LEXIS 2701 (1969)) two-pronged test requires that an officer seeking a search warrant based upon information provided by an informant swear out an affidavit stating to the magistrate that the informant is not only credible but has a basis of knowledge of the underlying circumstances. The test to determine probable cause to make an arrest should be equally as stringent as the test to determine whether probable cause exists to issue a search warrant. State v. Tays, 836 S.W.2d 596, 1992 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. 1992).

If the arresting officers rely in part on information from an informant in the criminal milieu, they must be able to demonstrate that the informant: (1) Has a basis of knowledge; and (2) Is credible. On the other hand, if the information contributing to the existence of probable cause has been gathered from an ordinary citizen, no showing of the informant's basis of knowledge and veracity is required. State v. Lewis, 36 S.W.3d 88, 2000 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. 2000).

18. Search Incident to Arrest.

State officer cannot search vehicles on probable cause for belief that they bear contraband liquor. Tenpenny v. State, 151 Tenn. 669, 270 S.W. 989, 1924 Tenn. LEXIS 94 (1925), overruled in part, State v. Parker, 525 S.W.2d 128, 1975 Tenn. LEXIS 651 (Tenn. 1975).

Arrest of defendant and search of defendant's car for whiskey without a warrant was illegal though officers had information that he was transporting whiskey where they had no knowledge as to amount of whiskey being transported. Epps v. State, 185 Tenn. 226, 205 S.W.2d 4, 1947 Tenn. LEXIS 324 (1947).

Where defendants were arrested by officers during flight after commission of grand larceny and one of defendants attempted to dispose of claim check for automobile in parking lot, search of the automobile without search warrant was not an unreasonable search. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 1956 Tenn. LEXIS 326 (1956).

Where sheriff arrived on scene while one of defendants in assault and battery prosecution was still making an assault on the victim within 200 yards of building where assault commenced and condition of victim was such as to indicate that weapons or blunt instruments had been used on the victim's head, sheriff was justified in searching the building without a warrant after having arrested such defendant. Pierce v. State, 204 Tenn. 14, 315 S.W.2d 271, 1958 Tenn. LEXIS 240 (1958).

One who is lawfully arrested may be searched on his person or the premises where he is arrested and may be searched without a warrant provided such search is incidental to such arrest. White v. State, 210 Tenn. 78, 356 S.W.2d 411, 1962 Tenn. LEXIS 413 (1962); Warden v. State, 214 Tenn. 314, 379 S.W.2d 788, 1964 Tenn. LEXIS 479 (1964); Patten v. State, 221 Tenn. 337, 426 S.W.2d 503, 1968 Tenn. LEXIS 521 (1968); Greer v. State, 1 Tenn. Crim. App. 407, 443 S.W.2d 681, 1969 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. 1969); Nix v. State, 1 Tenn. Crim. App. 517, 446 S.W.2d 266, 1969 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. 1969); Raynor v. State, 1 Tenn. Crim. App. 556, 447 S.W.2d 391, 1969 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. 1969); Campbell v. State, 1 Tenn. Crim. App. 586, 447 S.W.2d 877, 1969 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. 1969).

Where officers properly made arrest of persons suspected of burglary of telephone booths without warrant, upon reasonable cause of belief of the commission of a felony by persons arrested, but search of automobile was not made until two hours later, such search was not incident to the arrest. Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, 1964 Tenn. LEXIS 523 (1964), cert. denied, Thomerson v. Tennessee, 380 U.S. 933, 85 S. Ct. 938, 13 L. Ed. 2d 820, 1965 U.S. LEXIS 1692 (1965).

An officer making a lawful arrest has authority to search the person of the prisoner and things under his immediate control, even against his will, and such authority to search is not dependent on whether the arrest is for a felony or misdemeanor. Liming v. State, 220 Tenn. 371, 417 S.W.2d 769, 1967 Tenn. LEXIS 465 (1967).

When a person under arrest voluntarily consents to a search, he cannot be heard to complain. Houser v. State, 4 Tenn. Crim. App. 422, 472 S.W.2d 747, 1971 Tenn. Crim. App. LEXIS 408 (Tenn. Crim. App. 1971).

19. —Admissibility of Evidence.

Where officers watching defendant's house for suspected violation of liquor laws arrested a party leaving house who told officers he had just purchased liquor from defendant, and officers entered house without a warrant and seized unstamped bottle of whiskey, the bottle was admissible in evidence, since officers entered house for purpose of arresting defendant on charge of violating liquor law and seizure of bottle was merely incidental to a valid arrest. United States v. Burchfield, 87 F. Supp. 805, 1949 U.S. Dist. LEXIS 2126 (D. Tenn. 1949).

A person lawfully arrested may be searched at common law to obtain evidence of the offense for which he was arrested. State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165, 1966 Tenn. LEXIS 625 (1966).

When the search of an automobile was not incident to a lawful arrest under this section, the evidence obtained by the search was not admissible. Harris v. State, 219 Tenn. 459, 410 S.W.2d 876, 1967 Tenn. LEXIS 365 (1967).

Where an officer makes an arrest without a warrant on the basis of alleged reliable information possessed by him that a felony had been committed, it is the duty of the trial judge upon objection to the evidence gained by a search made in connection with such an arrest to conduct an inquiry for the purpose of satisfying himself as a judge that a felony had been committed and that the information came from a reliable source. Wallis v. State, 220 Tenn. 400, 417 S.W.2d 781, 1967 Tenn. LEXIS 467 (1967).

Where officers pursued defendant and his companion from place of robbery to motel room and had reasonable cause to make arrest without warrant, evidence obtained as result of search of motel room as incident to arrest was admissible in prosecution for armed robbery. Patten v. State, 221 Tenn. 337, 426 S.W.2d 503, 1968 Tenn. LEXIS 521 (1968).

A pistol which officers saw in defendant's car after they arrested him illegally and without a warrant was not admissible in evidence. St. John v. State, 491 S.W.2d 629, 1972 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. 1972).

Trial court erred in suppressing the evidence from defendant's arrest because the evidence was sufficient to establish probable cause that defendant committed driving under the influence of an intoxicant, by physical control, in the presence of a state trooper as defendant had driven a truck to a paper mill, was located next to the truck, had the ability—but for intoxication—to direct the use or non-use of the truck, and smelled of alcohol and gave indications of intoxication in field sobriety tests. State v. Brewer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Apr. 15, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 412 (Tenn. Aug. 16, 2019).

20. Effect of Conviction.

Defendant's arrest without a warrant on a charge of rape did not violate any constitutional right of defendant entitling him to relief under a writ of habeas corpus, where defendant was subsequently convicted on a valid indictment returned by the grand jury. In re Johnson, 277 F. Supp. 267, 1967 U.S. Dist. LEXIS 7463 (E.D. Tenn. 1967).

21. Validity of Warrant.

Where arrest would have been proper without a warrant, it is immaterial whether or not the warrant was good or bad. Harris v. State, 206 Tenn. 276, 332 S.W.2d 675, 1960 Tenn. LEXIS 514 (1960).

22. Liability of Officers.

The officer acts at his peril, and, if he has no right to make the arrest without a warrant, or if his warrant is not valid, he is a trespasser. McQueen v. Heck, 41 Tenn. 212, 1860 Tenn. LEXIS 49 (1860); Galvin v. State, 46 Tenn. 283, 1869 Tenn. LEXIS 56 (1869); Poteete v. State, 68 Tenn. 261, 1878 Tenn. LEXIS 4 (1878), superseded by statute as stated in, State v. Bertram, — S.W.2d —, 1993 Tenn. Crim. App. LEXIS 15 (Tenn. Crim. App. Jan. 14, 1993); Shelton v. State, 3 Tenn. Crim. App. 310, 460 S.W.2d 869, 1970 Tenn. Crim. App. LEXIS 458 (Tenn. Crim. App. 1970).

Constable was liable to plaintiff for money damages where constable arrested plaintiff with neither probable cause nor a warrant in violation of plaintiff's civil rights. Ford v. Wells, 347 F. Supp. 1026, 1972 U.S. Dist. LEXIS 13699 (E.D. Tenn. 1972).

23. Force in Effecting Arrest.

Shooting into automobile by officers to effect arrest of misdemeanants constitutes a felony under § 39-2-115 (repealed). State ex rel. Harbin v. Dunn, 39 Tenn. App. 190, 282 S.W.2d 203, 1943 Tenn. App. LEXIS 157 (Tenn. Ct. App. 1943).

It is both a civil wrong and a crime for a peace officer to use firearms so as to imperil life or limb of a nonresisting, fleeing misdemeanant in an attempt to arrest him or prevent his escape. State ex rel. Harbin v. Dunn, 39 Tenn. App. 190, 282 S.W.2d 203, 1943 Tenn. App. LEXIS 157 (Tenn. Ct. App. 1943).

24. Force to Resist Unlawful Arrest.

Every person has a right to resist an unlawful arrest and in preventing such illegal restraint of his liberty he may use such force as may be necessary, but force cannot be resorted to or means of resistance adopted which is disproportionate to the effort to take him into custody. Shelton v. State, 3 Tenn. Crim. App. 310, 460 S.W.2d 869, 1970 Tenn. Crim. App. LEXIS 458 (Tenn. Crim. App. 1970).

25. Duty to Make Arrest.

Statutes pertaining to drunk driving and public intoxication, do not, in conjunction with statutes authorizing warrantless arrests, give rise to a “special-duty” of care where a plaintiff alleges that a police officer failed to arrest or detain an alleged drunk driver. Ezell v. Cockrell, 902 S.W.2d 394, 1995 Tenn. LEXIS 315 (Tenn. 1995).

26. Probable Cause.

Defendant's conviction for first-degree felony murder committed during the perpetration of robbery was proper because, although the trial court should have suppressed defendant's confession to an investigator and police officers did not have probable cause to arrest defendant for killing the victim under T.C.A. § 40-7-103(a)(3) and Tenn. R. Crim. P. 4(b), the trial court's error was harmless since it was cumulative to an inmate's testimony and did not change the outcome of the trial. Additionally, the evidence showed that defendant voluntarily waived his Miranda  rights. State v. Echols, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 14, 2011), aff'd, 382 S.W.3d 266, 2012 Tenn. LEXIS 738 (Tenn. Oct. 10, 2012).

Law enforcement officers had probable cause to arrest petitioner for the shooting because the information obtained from petitioner's grand-uncle, identifying petitioner as “Taurus,” and the victim's statement about the shooting sufficiently corroborated one co-defendant's statements and a second co-defendant's second statement of the shooting. Stout v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 657 (Tenn. Crim. App. Aug. 23, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 36 (Tenn. Jan. 8, 2013), cert. denied, Stout v. Tennessee, 186 L. Ed. 2d 226, 133 S. Ct. 2776, 569 U.S. 1022, 2013 U.S. LEXIS 4183 (U.S. 2013).

Citizen informant's description of defendant and of his statement that he shot someone at the parking lot where the victim was killed was sufficient to provide probable cause to arrest him; therefore, the post-arrest statements he made after waiving his Miranda  rights were properly admitted at trial. State v. Echols, 382 S.W.3d 266, 2012 Tenn. LEXIS 738 (Tenn. Oct. 10, 2012).

Evidence presented at trial establishes that the officers had probable cause when they arrested defendant because before defendant was arrested, one of the victim's identified him to the police as the perpetrator and, as a victim in the case, the victim was a citizen informant whose statement was presumed to be reliable. State v. Dotson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 584 (Tenn. Crim. App. June 25, 2013), aff'd, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014).

Even considering a motorist's successful performance on a battery of field sobriety tests, a police officer had probable cause to arrest the motorist, without a warrant, for driving under the influence of an intoxicant because the motorist was driving on the wrong side of a divided highway late at night, smelled of alcohol, and admitted to having imbibed more than he should have. State v. Bell, 429 S.W.3d 524, 2014 Tenn. LEXIS 121 (Tenn. Feb. 20, 2014).

Police officers had probable cause to arrest defendant because the officers had sufficient independent information to corroborate codefendant's statement implicating codefendant and defendant in the shooting of the victim. The testimony at the suppression hearing of the case coordinator for the police department confirmed that the police knew all the facts, except the identity of the accomplice, when codefendant gave a statement and codefendant's identification of defendant as the accomplice was suitably credible to endow the police with probable cause to arrest defendant. State v. Bishop, 431 S.W.3d 22, 2014 Tenn. LEXIS 189 (Tenn. Mar. 6, 2014), cert. denied, Bishop v. Tennessee, 190 L. Ed. 2d 92, 135 S. Ct. 120, — U.S. —, 2014 U.S. LEXIS 6666 (U.S. 2014).

Defendant's warrantless arrest was supported by probable cause because at the time of defendant's arrest, the police knew that a citizen informant, who was also an eyewitness to and victim of the crime, as well as a nephew of defendant, had identified defendant as the perpetrator of the homicides and assaults; the murders and assaults were accomplished with weapons found inside the home; and defendant, a close relative of three of the six murder victims and three of the assault victims, had spent time in the home and was familiar with it. State v. Dotson, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014), cert. denied, Dotson v. Tennessee, 191 L. Ed. 2d 565, 135 S. Ct. 1535, — U.S. —, 2015 U.S. LEXIS 1830 (U.S. 2015).

Law enforcement officers had probable cause to arrest defendant where, at the time of the arrest, the facts and circumstances within the knowledge of the officers, and of which they had reasonably trustworthy information, were sufficient to warrant a prudent person in believing that defendant was involved in the carjacking, kidnapping, rape, and murder of the victims. State v. Thomas, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 5, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Feb. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 675 (Tenn. Aug. 12, 2015), cert. denied, Thomas v. Tennessee, 194 L. Ed. 2d 559, 136 S. Ct. 1458, — U.S. —, 2016 U.S. LEXIS 1999 (U.S. 2016).

Record supported the determination that the sergeant had probable cause to arrest defendant without a warrant and that delays in the interview process were insufficient to overcome the defendant's will; there was no evidence that the defendant's statement was the fruit of an illegal arrest or was not voluntarily and knowingly made, defendant's claim of a violation of his constitutional rights was rejected, and the trial court properly denied defendant's motion to suppress his statement to police. State v. Thomas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 605 (Tenn. Crim. App. Aug. 16, 2016).

Because probable cause existed for defendant's arrest, the trial court's grant of the motion to suppress was reversed; the confidential informant (CI) had a basis of knowledge, and the independent observations of the investigator, coupled with the information supplied by the CI, gave probable cause for the arrest. State v. Smith, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 190 (Tenn. Crim. App. Mar. 14, 2017).

Officer had probable cause to arrest defendant without a warrant, and the stolen televisions were lawfully recovered in a search incident to arrest, because the officer was aware of the burglary of the victim's vehicle in which the victim saw defendant retrieve his stolen property from nearby bushes, the victim saw defendant's vehicle and noted its license plate, prior to pulling defendant over the officer confirmed that the vehicle defendant was driving was the same as the one observed by the victim, and the officer saw defendant covering up what appeared to be televisions in the backseat of the vehicle. State v. Rembert, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. Apr. 16, 2018).

40-7-104. Time of arrest by officer.

Arrests by officers for public offenses may be made on any day and at any time.

Code 1858, § 5033; Shan., § 6993; Code 1932, § 11532; T.C.A. (orig. ed.), § 40-804.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.170.

40-7-105. Assistance to officer acting on warrant.

Every person shall aid an officer in the execution of a warrant if the officer requires the person's aid and is present and acting in its execution.

Code 1858, § 5035; Shan., § 6995; Code 1932, § 11534; T.C.A. (orig ed.), § 40-805.

40-7-106. Notice of authority and grounds for arrest — Telephone call.

  1. When arresting a person, the officer shall inform the person of the officer's authority and the cause of the arrest, and exhibit the warrant if the officer has one, except when the person is in the actual commission of the offense or is pursued immediately after an escape.
  2. No person under arrest by any officer or private citizen shall be named in any book, ledger or any other record until after the person has successfully completed a telephone call to an attorney, relative, minister or any other person that the person shall choose, without undue delay. One (1) hour shall constitute a reasonable time without undue delay. However, if the arrested person does not choose to make a telephone call, then the person shall be booked or docketed immediately.

Code 1858, § 5038; Shan., § 6998; Code 1932, § 11537; Acts 1965, ch. 298, § 1; T.C.A. (orig. ed.), § 40-806.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.11, 18.169.

Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 33.

Law Reviews.

Criminal Law in Tennessee in 1968 — A Critical Survey (Joseph G. Cook), 36 Tenn. L. Rev. 221.

Attorney General Opinions. Statute requiring police officers to provide notice of their authority or grounds for arrest does not apply to security officers; however, a security officer must provide notice of the grounds of an arrest, OAG 03-018 (2/19/03).

NOTES TO DECISIONS

1. Notice Unnecessary.

When a party is taken in the commission of an offense, or upon fresh pursuit, or when the officer is violently assaulted upon coming up with the accused, the officer is not required to make known his authority or the cause of the arrest, because the arrested party must be supposed to know the cause of his arrest. Lewis v. State, 40 Tenn. 127, 1859 Tenn. LEXIS 38 (1859); Galvin v. State, 46 Tenn. 283, 1869 Tenn. LEXIS 56 (1869).

Notice not required for arrest of one transporting liquor by automobile who refused to stop on order, so that there was no opportunity to give notice. Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

Arrests of defendants on probable cause by police officer shortly after they had attempted to cash stolen money order at grocery store were not rendered invalid under this section requiring officer to inform person arrested of the cause of the arrest where officer told defendants they were being arrested for investigation and the time of the arrest was closely proximate to that of offense. United States v. Clemmons, 390 F.2d 407, 1968 U.S. App. LEXIS 8042 (6th Cir. Tenn. 1968).

Strict adherence to this section is not required where the defendant knows or has notice of the cause of his arrest. State v. Hill, 638 S.W.2d 827, 1982 Tenn. Crim. App. LEXIS 451 (Tenn. Crim. App. 1982).

2. Meaning of “Escape.”

The principle of the common law is not changed by the force of the word “escape” used in this section, for it is not here used in its technical, but in its popular sense, which is “to flee from, to avoid, to get out of the way,” and may apply to a person who has not been previously arrested. Lewis v. State, 40 Tenn. 127, 1859 Tenn. LEXIS 38 (1859).

3. Arrest by Bail or Agents.

For the arrest of principal by bail or his agents to be legal, the bond or a certified copy thereof must be exhibited to the principal at the time of the arrest, and, if the arrest is made by agents of the bail, the bond or copy thereof must contain a proper endorsement by the bail to them authorizing them to make the arrest. Poteete v. Olive, 527 S.W.2d 84, 1975 Tenn. LEXIS 636 (Tenn. 1975).

4. Money Damages.

The court found it difficult to accept the idea that the mere violation of the guidelines imposed by this section would amount to a cognizable claim for money damages. Campbell v. Buckles, 448 F. Supp. 288, 1977 U.S. Dist. LEXIS 15623 (E.D. Tenn. 1976).

5. Grounds.

6. —Misstatements.

An arrest is not rendered unlawful by the fact that an officer who has authority to make an arrest for a particular offense erroneously states he is making an arrest for some other offense, or even for a cause which is not in fact an offense, or states the offense inaccurately. State v. Robinson, 622 S.W.2d 62, 1981 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. 1980), dismissed, LeMay v. Tennessee, 454 U.S. 1096, 102 S. Ct. 667, 70 L. Ed. 2d 636, 1981 U.S. LEXIS 2831 (1981).

7. Right to Telephone Call.

T.C.A. § 40-7-106 does not create a due process right since the right to make a phone call immediately upon arrest is not a recognized property right, nor is it a traditional liberty interest recognized by federal law. Harrill v. Blount County, 55 F.3d 1123, 1995 FED App. 160P, 1995 U.S. App. LEXIS 13233 (6th Cir. Tenn. 1995).

T.C.A. § 40-7-106 does not set forth a federal right actionable under 42 U.S.C. § 1983; thus, a violation of the section by police officers could not be used to destroy their claim of qualified immunity in an action partially based on the officers' refusal to allow plaintiff an immediate telephone call after arrest. Harrill v. Blount County, 55 F.3d 1123, 1995 FED App. 160P, 1995 U.S. App. LEXIS 13233 (6th Cir. Tenn. 1995).

Defendant's written statement was not rendered involuntary by actions of investigating officers because while investigating officers did not comply with requirements of T.C.A. § 40-7-106, the statutory violation did not warrant suppression of the statement when defendant's request to make a phone call came after he had already made his verbal confession to the investigating officers, and their denial of his request until after he provided a statement in writing, given the totality of the circumstances, did not render that written statement the product of police coercion. State v. Downey, 259 S.W.3d 723, 2008 Tenn. LEXIS 536 (Tenn. Aug. 15, 2008).

40-7-107. Authority of officer to break in.

To make an arrest, either with or without a warrant, the officer may break open any outer or inner door or window of a dwelling house if, after notice of the officer's office, authority and purpose, the officer is refused admittance.

Code 1858, § 5039; Shan., § 6999; Code 1932, § 11538; T.C.A. (orig. ed.), § 40-807.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.23, 18.201, 18.203.

Law Reviews.

The Tennessee Bail System — What's the Best Cure? (Michael D. Brent), 8 Mem. St. U.L. Rev. 121.

NOTES TO DECISIONS

1. Constitutionality.

There is no merit in the alleged invalidity of this statute as violating U.S. Const., amend. 4, prohibiting unreasonable searches and seizures. Smith v. Tate, 143 Tenn. 268, 227 S.W. 1026, 1920 Tenn. LEXIS 17 (1921).

In attempting to execute a valid arrest warrant, defendant police officers and those assisting them were constitutionally authorized to enter any place they had reason to believe one or both of the persons named in the warrant might be found, and, if necessary, to break any outer or inner door of any building, if after notice of their offices, authority, and purpose, they had been refused admittance. McCloud v. Tester, 391 F. Supp. 1271, 1975 U.S. Dist. LEXIS 14552 (E.D. Tenn. 1975).

2. Search of House for Felon.

A sheriff, in seeking to arrest one who has committed a felony, though he has no warrant for the arrest, has the right, under this statute, after giving notice of his authority and purpose, to enter a house and search the same, breaking it open, if necessary, where he believes, on reasonable grounds, that the felon is therein. Smith v. Tate, 143 Tenn. 268, 227 S.W. 1026, 1920 Tenn. LEXIS 17 (1921).

3. Money Damages.

The court found it difficult to accept the idea that the mere violation of the guidelines imposed by this section would amount to a cognizable claim for money damages. Campbell v. Buckles, 448 F. Supp. 288, 1977 U.S. Dist. LEXIS 15623 (E.D. Tenn. 1976).

40-7-108. Resistance to officer.

  1. A law enforcement officer, after giving notice of the officer's identity as an officer, may use or threaten to use force that is reasonably necessary to accomplish the arrest of an individual suspected of a criminal act who resists or flees from the arrest.
  2. Notwithstanding subsection (a), the officer may use deadly force to effect an arrest only if all other reasonable means of apprehension have been exhausted or are unavailable, and where feasible, the officer has given notice of the officer's identity as an officer and given a warning that deadly force may be used unless resistance or flight ceases, and:
    1. The officer has probable cause to believe the individual to be arrested has committed a felony involving the infliction or threatened infliction of serious bodily injury; or
    2. The officer has probable cause to believe that the individual to be arrested poses a threat of serious bodily injury, either to the officer or to others unless immediately apprehended.
  3. All law enforcement officers, both state and local, shall be bound by this section and shall receive instruction regarding implementation of this section in law enforcement training programs.

Code 1858, § 5040; Shan., § 7000; Code 1932, § 11539; T.C.A. (orig. ed.), § 40-808; Acts 1985, ch. 359, § 1; 1990, ch. 980, § 19.

Compiler's Notes. Some versions of this section have been held unconstitutional in certain circumstances in Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1984) and other cases. See Notes to Decisions, Decisions Under Prior Law, 1. Constitutionality.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 1.23, 18.168, 28.121.

Law Reviews.

1985 Tennessee Survey: Selected Developments in Tennessee Law, 53 Tenn. L. Rev. 351 (1986).

In Pursuit of the Elusive Fourth Amendment: The Police Chase Cases (Ronald J. Bacigal), 58 Tenn. L. Rev. 73 (1990).

My Fellow Americans, We Are Going to Kill You: The Legality of Targeting and Killing U.S. Citizens Abroad (Mike Dreyfuss), 65 Vand. L. Rev. 249 (2012).

Attorney General Opinions. Extent of municipal police authority beyond municipal limits.  OAG 10-48, 2010 Tenn. AG LEXIS 48 (4/12/10).

NOTES TO DECISIONS

1. Constitutionality.

Deadly force may not be used to prevent the escape of an apparently unarmed suspected felon unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985), overruled, Smith v. City of Killeen, — F. Supp. 2d —, 2018 U.S. Dist. LEXIS 37748 (W.D. Tex. Mar. 8, 2018).

United States supreme court decision holding fleeing felon statutes unconstitutional not to be retroactively applied. Carter v. Chattanooga, 850 F.2d 1119, 1988 U.S. App. LEXIS 8862 (6th Cir. Tenn. 1988), cert. denied, 488 U.S. 1010, 109 S. Ct. 795, 102 L. Ed. 2d 786, 1989 U.S. LEXIS 78 (1989).

2. Deadly Force.

Where an automobile driver had committed the felony of assault with intent to kill, by attempting to run down the sheriff when the latter sought to make a lawful arrest, the sheriff was justified in killing such driver, if necessary to prevent his escape. Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

An officer cannot be justified in killing a felon, either to capture him or to prevent his escape, if with diligence and caution he might otherwise be taken or held. Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

The trial court was not guilty of error in concluding that the defendant-policemen were justified in the use of deadly force to apprehend the plaintiff who continued flight from the scene of a burglary after the officers identified themselves and ordered him to halt. Beech v. Melancon, 465 F.2d 425, 1972 U.S. App. LEXIS 8153 (6th Cir. Tenn. 1972), cert. denied, 409 U.S. 1114, 93 S. Ct. 927, 34 L. Ed. 2d 696, 34 L. Ed. 696, 1973 U.S. LEXIS 3854 (1973).

Where deceased was seen prowling in sporting goods store at night, fled when surprised by police and ignored commands to halt, the jury could properly find that the officers' use of deadly force was reasonable, especially as guns and ammunition were found near deceased's body. Wiley v. Memphis Police Dep't, 548 F.2d 1247, 1977 U.S. App. LEXIS 10104 (6th Cir. Tenn. 1977), cert. denied, 434 U.S. 822, 98 S. Ct. 65, 54 L. Ed. 2d 78, 1977 U.S. LEXIS 2819 (1977).

Defendant municipal police department's decision to authorize use of deadly force to apprehend a non-dangerous fleeing burglary suspect was a deliberate choice from among various alternatives under Pembaur  and constituted official policy under the Monell  line of cases. Garner v. Memphis Police Dep't, 8 F.3d 358, 1993 U.S. App. LEXIS 27296 (6th Cir. Tenn. 1993), cert. denied, 510 U.S. 1177, 114 S. Ct. 1219, 127 L. Ed. 2d 565, 1994 U.S. LEXIS 2074 (1994).

3. Excessive Force.

Where defendant, a duly elected constable, knocked plaintiff down three times with a blackjack and dragged him with a “dog-choker” chain, the court found that the officer used more force than was necessary to effect the arrest. Ford v. Wells, 347 F. Supp. 1026, 1972 U.S. Dist. LEXIS 13699 (E.D. Tenn. 1972).

Where police officers shot and killed driver of stolen police car after he attempted to run police officer down, it was held that there was no exercise of excessive force and that the decedent was not deprived of his civil rights without due process of law under U.S. Const., amend. 14. Smith v. Jones, 379 F. Supp. 201, 1973 U.S. Dist. LEXIS 11631 (M.D. Tenn. 1973), aff'd without opinion, 497 F.2d 924 (6th Cir. 1974).

Deputy sheriff, who initially stopped a citizen for traffic violations and later found him to be a military deserter, was not justified in shooting the fleeing citizen as there were other means available to prevent the escape and the deputy had at no time given the citizen notice of his intention to arrest him for desertion. Fults v. Pearsall, 408 F. Supp. 1164, 1975 U.S. Dist. LEXIS 13568 (E.D. Tenn. 1975).

4. Arrest for Misdemeanor.

This section did not authorize the use of firearms to prevent the escape of a person sought to be arrested for a misdemeanor under the game and fish laws. Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819, 1937 Tenn. LEXIS 18 (1938).

5. Question for Jury.

Whether the escape of an automobile driver, who had committed a felony in the sheriff's presence and whose way was almost completely blocked by the sheriff's automobile, could have been prevented without killing the driver, is a question for the jury under the evidence. Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

The reasonableness of force used under this statute is a jury question. Wiley v. Memphis Police Dep't, 548 F.2d 1247, 1977 U.S. App. LEXIS 10104 (6th Cir. Tenn. 1977), cert. denied, 434 U.S. 822, 98 S. Ct. 65, 54 L. Ed. 2d 78, 1977 U.S. LEXIS 2819 (1977).

In an action arising from a deputy sheriff's fatal wounding of a mentally disturbed person, issue as to whether deputy's use of deadly force was objectively reasonable under the fourth amendment precluded summary judgment. Thompson v. Williamson County, 965 F. Supp. 1026, 1997 U.S. Dist. LEXIS 7491 (M.D. Tenn. 1997), aff'd, 219 F.3d 555, 2000 FED App. 233P, 2000 U.S. App. LEXIS 16679 (6th Cir. Tenn. 2000).

6. Probable Cause.

Before taking the drastic measure of using deadly force as a last resort against a fleeing suspect, officers should have probable cause to believe not simply that the suspect has committed some felony; they should have probable cause also to believe that the suspect poses a threat to the safety of the officers or a danger to the community if left at large. The officers may be justified in using deadly force if the suspect has committed a violent crime or if they have probable cause to believe that he is armed or that he will endanger the physical safety of others if not captured. Garner v. Memphis Police Dep't, 710 F.2d 240, 1983 U.S. App. LEXIS 26683 (6th Cir. Tenn. 1983), aff'd, Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985).

Decisions Under Prior Law

1. Constitutionality.

The use of force in the arrest of a fleeing felon does not constitute “punishment” nor is the (former) statute vague in its terms so as to violate due process requirements nor is its distinction between misdemeanants and felons violative of the equal protection clause. Cunningham v. Ellington, 323 F. Supp. 1072, 1971 U.S. Dist. LEXIS 14335 (W.D. Tenn. 1971).

This section merely embodies the universally recognized common law and is a reasonable measure for the protection of police while performing their duty of apprehending fleeing felons; it does not violate U.S. Const., amend. 4-6, 8, 13 or 14. Wiley v. Memphis Police Dep't, 548 F.2d 1247, 1977 U.S. App. LEXIS 10104 (6th Cir. Tenn. 1977), cert. denied, 434 U.S. 822, 98 S. Ct. 65, 54 L. Ed. 2d 78, 1977 U.S. LEXIS 2819 (1977).

This section does not violate the equal protection clause of U.S. Const., amend. 14, since no racial animus or bias has been shown to animate the section's policy; nor is it unconstitutional solely because it has a racially disproportionate impact. Wiley v. Memphis Police Dep't, 548 F.2d 1247, 1977 U.S. App. LEXIS 10104 (6th Cir. Tenn. 1977), cert. denied, 434 U.S. 822, 98 S. Ct. 65, 54 L. Ed. 2d 78, 1977 U.S. LEXIS 2819 (1977).

This section authorizing the killing of an unarmed, nonviolent fleeing felon by police, in order to prevent escape, constitutes an unreasonable seizure of the person under the U.S. Const., amend. 4. Garner v. Memphis Police Dep't, 710 F.2d 240, 1983 U.S. App. LEXIS 26683 (6th Cir. Tenn. 1983), aff'd, Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985).

This section is invalid because it does not put sufficient limits on the use of deadly force; it is too disproportionate, and it does not make distinctions based on gravity and need nor on the magnitude of the offense. Garner v. Memphis Police Dep't, 710 F.2d 240, 1983 U.S. App. LEXIS 26683 (6th Cir. Tenn. 1983), aff'd, Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985).

While certainly there are state interests in law enforcement served by this section which allows police to shoot all fleeing felons, those interests are compelling only when the fleeing felon poses a danger to the safety of others; those interests are not sufficiently compelling to justify the use of deadly force to protect only property rights. Garner v. Memphis Police Dep't, 710 F.2d 240, 1983 U.S. App. LEXIS 26683 (6th Cir. Tenn. 1983), aff'd, Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985); Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985), overruled, Smith v. City of Killeen, — F. Supp. 2d —, 2018 U.S. Dist. LEXIS 37748 (W.D. Tex. Mar. 8, 2018).

This section is unconstitutional insofar as it authorizes the use of deadly force against apparently unarmed fleeing suspected felons; it is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985), overruled, Smith v. City of Killeen, — F. Supp. 2d —, 2018 U.S. Dist. LEXIS 37748 (W.D. Tex. Mar. 8, 2018).

40-7-109. Arrest by private person — Grounds.

  1. A private person may arrest another:
    1. For a public offense committed in the arresting person's presence;
    2. When the person arrested has committed a felony, although not in the arresting person's presence; or
    3. When a felony has been committed, and the arresting person has reasonable cause to believe that the person arrested committed the felony.
  2. A private person who makes an arrest of another pursuant to §§ 40-7-109 — 40-7-115 shall receive no arrest fee or compensation for the arrest.

Code 1858, § 5042; Shan., § 7002; Code 1932, § 11541; Acts 1965, ch. 279, § 1; T.C.A. (orig. ed.), § 40-816.

Cross-References. Extension of police authority beyond corporate limits, § 6-54-301.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.162.

Law Reviews.

At the Intersection of Sovereignty and Contract: Traffic Cameras and the Privatization of Law Enforcement Power (William D. Mercer), 43 U. Mem. L. Rev. 379 (2012).

Torts (John W. Wade), 6 Vand. L. Rev. 990.

Attorney General Opinions. Statute requiring police officers to provide notice of their authority or grounds for arrest does not apply to security officers; however, a security officer must provide notice of the grounds of an arrest, OAG 03-018 (2/19/03).

A security guard may enter a room to prevent and detect the use of illegal drugs, OAG 03-148 (11/17/03).

Effect of Acts 2014, ch. 531 on arrests by private citizens, security officers; warrant requirements where affiant not a law enforcement officer. OAG 14-93, 2014 Tenn. AG LEXIS 96 (10/24/14).

NOTES TO DECISIONS

1. Common Law Superseded.

The general assembly intended to cover the whole subject of arrests without warrants by private persons, and the common law on that subject is not in force in this state. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

2. Limitation to Crimes in State.

This section applies only to crimes committed in this state, and a citizen of this state cannot be arrested by citizens of another state, without warrant, for an offense committed in another state. Tarver v. State, 90 Tenn. 485, 16 S.W. 1041, 1891 Tenn. LEXIS 31 (1891), superseded by statute as stated in, State v. Maupin, — S.W.2d —, 1991 Tenn. Crim. App. LEXIS 818 (Tenn. Crim. App. Oct. 7, 1991).

3. Offense Committed in Presence.

The transportation of whiskey over the public roads of this state was a public offense, so that the person guilty thereof could be arrested without a warrant by the sheriff, or by a private person, in whose presence the offense was committed. Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

4. Offense Not Committed in Presence.

A private person making an arrest for an offense not committed in his presence must, in order to justify his act, show that a felony had been committed, and that he had reasonable cause to believe that the person arrested committed it. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

This section authorizes arrest when a felony has been committed and there is reasonable cause to believe the person arrested committed it. Reed v. Hutton, 1 Tenn. App. 36, — S.W. —, 1925 Tenn. App. LEXIS 7 (Tenn. Ct. App. 1925); Krueger v. Miller, 489 F. Supp. 321, 1977 U.S. Dist. LEXIS 13982 (E.D. Tenn. 1977).

Under the federal constitution, fourth amendment, a person's suspicion that another person might be about to commit a felony was not enough reasonable cause for his seizing her. Krueger v. Miller, 489 F. Supp. 321, 1977 U.S. Dist. LEXIS 13982 (E.D. Tenn. 1977).

5. —Reasonable Cause.

Reasonable grounds will justify the arrest by a private person, whether the facts, when developed, would be sufficient or not. Wilson v. State, 79 Tenn. 310, 1883 Tenn. LEXIS 66 (1883).

6. —When No Offense Committed.

Probable cause to believe that the offense was committed will not justify an arrest by a private person when, in fact, no offense was committed. Martin v. Castner-Knott Dry Goods Co., 27 Tenn. App. 421, 181 S.W.2d 638, 1944 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1944).

7. Police Officer Outside Jurisdiction.

Where city policeman pursued defendant beyond the city limits in an attempted arrest for an offense committed within his sight, the arrest of the defendant by the policeman for a later offense committed within his sight was valid as an arrest by a private person under this section. Francis v. State, 498 S.W.2d 107, 1973 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. 1973).

Local law enforcement officials have the right to make arrests as private citizens beyond the one-mile limitation of § 6-54-301 which provides in part that police authority of incorporated towns and cities extends one mile from the corporate limits. State v. Johnson, 661 S.W.2d 854, 1983 Tenn. LEXIS 791 (Tenn. 1983); State v. Flynn, 675 S.W.2d 494, 1984 Tenn. Crim. App. LEXIS 2784 (Tenn. Crim. App. 1984).

Defendant's arrest effected by officers acting outside their geographical jurisdiction was valid under T.C.A. § 40-7-109 and the Tennessee Supreme Court's decision in State v. Johnson, 661 S.W.2d 854, 1983 Tenn. LEXIS 791 (Tenn. 1983), as the officers knew a felony had been committed and had reasonable cause to believe defendant had committed it. United States v. Layne, 6 F.3d 396, 1993 U.S. App. LEXIS 25689 (6th Cir. Tenn. 1993), cert. denied, 511 U.S. 1006, 114 S. Ct. 1374, 128 L. Ed. 2d 51, 1994 U.S. LEXIS 2534 (1994).

8. Construction under Federal Civil Rights Law.

An arrest under this section is not an act “under color of law” within the meaning of 42 U.S.C. § 1983, authorizing a civil action for any person deprived of constitutional rights “under color of any statute, ordinance, regulation, custom, or usage of any State or Territory.” Bryant v. Donnell, 239 F. Supp. 681, 1965 U.S. Dist. LEXIS 7091 (W.D. Tenn. 1965).

40-7-110. Arrest by private person — Time.

A private person may make an arrest for a felony at any time.

Code 1858, § 5034; Shan., § 6994; Code 1932, § 11533; T.C.A. (orig. ed.), § 40-817.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.162.

Attorney General Opinions. Effect of Acts 2014, ch. 531 on arrests by private citizens, security officers; warrant requirements where affiant not a law enforcement officer. OAG 14-93, 2014 Tenn. AG LEXIS 96 (10/24/14).

40-7-111. Arrest by private person — Notice of grounds.

A private person making an arrest shall, at the time of the arrest, inform the person arrested of the cause of the arrest, except when the person is in the actual commission of the offense, or when arrested on pursuit.

Code 1858, § 5043; Shan., § 7003; Code 1932, § 11542; T.C.A. (orig. ed.), § 40-818.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.162.

Attorney General Opinions. Statute requiring police officers to provide notice of their authority or grounds for arrest does not apply to security officers; however, a security officer must provide notice of the grounds of an arrest, OAG 03-018 (2/19/03).

NOTES TO DECISIONS

1. Arrest on Pursuit.

When the arrest is made on pursuit, and the facts show that the fleeing person was fully advised of the cause for which he was arrested, the officer or private citizen attempting to make the arrest need not give notice of the cause of the arrest. Wilson v. State, 79 Tenn. 310, 1883 Tenn. LEXIS 66 (1883); Love v. Bass, 145 Tenn. 522, 238 S.W. 94, 1921 Tenn. LEXIS 92 (1922).

2. Arrest for Escape.

The provisions of §§ 40-7-10940-7-112 do not authorize any private person to make an arrest for an escape, except in those instances in which the escape itself is by law a felony. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

3. Failure to Give Notice.

The court found it difficult to accept the idea that the mere violation of the guidelines imposed by this section would amount to a cognizable claim for money damages. Campbell v. Buckles, 448 F. Supp. 288, 1977 U.S. Dist. LEXIS 15623 (E.D. Tenn. 1976).

40-7-112. Arrest by private person — Notice of intention to make arrest — Use of force to enter dwelling house.

If the person to be arrested has committed a felony, and a private person, after notice of the person's intention to make the arrest, is refused admittance, the arresting person may break open an outer or inner door or window of a dwelling house to make the arrest.

Code 1858, § 5044; Shan., § 7004; Code 1932, § 11543; T.C.A. (orig. ed.), § 40-819.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.162.

NOTES TO DECISIONS

1. Limitation of Section to Felon's House.

A private person seeking to make an arrest for a felony may, after notice of his intention and refusal of admittance, break open an outer or inner door or window of the dwelling house of the person sought to be arrested, but not that of a stranger. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

40-7-113. Disposition of person arrested by private person.

  1. A private person who has arrested another for a public offense shall, without unnecessary delay, take the arrested person before a magistrate or deliver the arrested person to an officer.
  2. An officer may take before a magistrate, without a warrant, any person who, being engaged in the commission of a public offense, is arrested by a bystander and delivered to the officer, and anyone arrested by a private person as provided in §§ 40-7-109 — 40-7-112, and delivered to the officer.

Code 1858, §§ 5041, 5045; Shan., §§ 7001, 7005; Code 1932, §§ 11540, 11544; T.C.A. (orig. ed.), §§ 40-820, 40-821.

Cross-References. Examination by magistrate, title 40, ch. 10.

Officials designated as magistrates, § 40-1-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.162.

Tennessee Jurisprudence, 13 Tenn. Juris., False Imprisonment, § 2.

Law Reviews.

At the Intersection of Sovereignty and Contract: Traffic Cameras and the Privatization of Law Enforcement Power (William D. Mercer), 43 U. Mem. L. Rev. 379 (2012).

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

Attorney General Opinions. A private person/security guard may transport an arrested individual before the magistrate if a law enforcement official declines to do so, OAG 03-018 (2/19/03).

A security guard who arrests an individual may transport that person in a personal or company vehicle, OAG 03-018 (2/19/03).

A private citizen or security officer could be liable for any injuries incurred by an arrested person during transport, OAG 03-018 (2/19/03).

A law enforcement official has the option to refuse to take a person arrested by a private person/security officer before a magistrate, OAG 03-018 (2/19/03).

Security guards issuing criminal summons or citations, OAG 07-002 (1/4/07).

NOTES TO DECISIONS

1. Arrest by Officer.

This section is inapplicable to an officer making an arrest. Wynn v. State, 181 Tenn. 325, 181 S.W.2d 332, 1944 Tenn. LEXIS 395 (1944); East v. State, 197 Tenn. 644, 277 S.W.2d 361, 1955 Tenn. LEXIS 330 (1955).

2. Tortious Conduct.

The grant of authority under T.C.A. § 40-7-113 may make certain conduct lawful that would otherwise be a tort; however, it does not make all conduct, no matter how unreasonable, lawful. Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999).

Although officers may have taken custody of arrestee pursuant to T.C.A. § 40-7-113, this grant of authority did not absolve them of their responsibility not to commit a tort on the citizen in their custody. Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999).

40-7-114. Pursuit after escape.

If a person arrested escapes or is rescued, the person from whose custody the arrested person escaped or was rescued may immediately pursue and retake the arrested person at any time and in any place within the state.

Code 1858, § 5046; Shan., § 7006; Code 1932, § 11545; T.C.A. (orig. ed.), § 40-822.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.163.

NOTES TO DECISIONS

1. Limited Statutory Authority for Arrest for Escape.

Except where the escape itself is a felony, and the further exception of immediate pursuit for recapture, there is no authority conferred by our statutes upon a private person, or an officer without a warrant, to make an arrest for an escape. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

2. Necessity of Immediate Pursuit.

A private person may immediately pursue and recapture one charged with crime where he had been lawfully arrested by him and, an officer may make such immediate pursuit and recapture, without a warrant, where a person charged with crime has escaped, and whether from jail or the personal custody of the officer. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

Neither a private person, nor an officer without a warrant, may lawfully arrest a person who has escaped from jail or from custody, when the pursuit is not immediate or fresh. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906); State ex rel. Estill v. Endsley, 122 Tenn. 647, 126 S.W. 103, 1909 Tenn. LEXIS 37, 135 Am. St. Rep. 886 (1910).

3. Private Citizens — Pursuit in Other Counties.

It is not within the contemplation of our statutes that private citizens of one county should take it upon themselves to go into other counties, without a warrant, in search of criminals, except in cases of fresh pursuit of a fleeing felon endeavoring to avoid immediate capture, in an original arrest or on immediate pursuit after arrest and escape. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

40-7-115. Breaking in to retake escaped prisoner.

To retake the party escaping or rescued, the person pursuing may, after notice of that person's intention and refusal of admittance, break open any outer or inner door or window of a dwelling house.

Code 1858, § 5047; Shan., § 7007; Code 1932, § 11546; T.C.A. (orig. ed.), § 40-823.

NOTES TO DECISIONS

1. Application of Section to Any Dwelling.

After arrest of a person for a felony, a private person may, upon an attempted escape from his custody and upon immediate and fresh pursuit, after notice of his intention and refusal of admittance, break open the outer or inner door or window of any dwelling house in which the fleeing felon has sought refuge. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

2. Private Citizens — Attempting Arrest in Another County.

A sheriff and his assistants acting as private citizens had no right to break open the inner or outer door of the dwelling house of a stranger, where they were outside county of their jurisdiction, had no warrant, were not in hot pursuit and defendant had not escaped from them. McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79, 1906 Tenn. LEXIS 21 (1906).

40-7-116. Theft — Detention of suspect by merchant or peace officer.

  1. A merchant, a merchant's employee, or agent or a peace officer who has probable cause to believe that a person has committed or is attempting to commit the offense of theft, as defined in § 39-14-103, may detain that person on or off the premises of the mercantile establishment if the detention is done for any or all of the following purposes:
    1. To question the person, investigate the surrounding circumstances, obtain a statement, or any combination thereof;
    2. To request or verify identification, or both;
    3. To inform a peace officer of the detention of that person, or surrender that person to the custody of a peace officer, or both;
    4. To inform a peace officer, the parent or parents, guardian or other private person interested in the welfare of a minor of the detention and to surrender the minor to the custody of that person; or
    5. To institute criminal proceedings against the person.
  2. Probable cause to suspect that a person has committed or is attempting to commit the offense of theft may be based on, but not limited to:
    1. Personal observation, including observation via closed circuit television or other visual device;
    2. Report of personal observation from another merchant;
    3. Activation of an electronic or other type of mechanical device designed to detect theft; or
    4. Personal observation of dressing rooms, including observation via closed circuit television, two-way mirrors, or other visual devices, shall be limited to observation by a person of the same sex as the person being observed. No observation shall be lawful unless notices are posted in the dressing rooms that monitoring may occur.
  3. A merchant, a merchant's employee or agent, or a peace officer who detains, questions or causes the arrest of any person suspected of theft shall not be criminally or civilly liable for any legal action relating to the detention, questioning or arrest if the merchant, merchant's employee or agent, or peace officer:
    1. Has reasonable grounds to suspect that the person has committed or is attempting to commit theft;
    2. Acts in a reasonable manner under the circumstances; and
    3. Detains the suspected person for a reasonable period of time.
  4. The merchant may use a reasonable amount of force necessary to protect the merchant, to prevent escape of the person detained, or to prevent the loss or destruction of property.
  5. A “reasonable period of time”, for the purposes of this section, is a period of time long enough to accomplish the purpose set forth in this section, and shall include any time spent awaiting the arrival of a law enforcement officer or the parents or guardian of a juvenile suspect, if the merchant or the merchant's employee or agent has summoned a law enforcement officer, the parents or a guardian.

Acts 1957, ch. 164, §§ 1, 3; T.C.A., §§ 40-824, 40-826; Acts 1983, ch. 326, § 2; 1990, ch. 1030, § 17.

Cross-References. Civil penalty in lieu of criminal penalty for theft of retail merchandise, §§ 39-14-144, 39-14-145.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 18.33, 18.50, 28.121.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

Attorney General Opinions. A security officer may detain a person pending further investigation into a theft or attempted theft from a merchant, OAG 03-149 (11/17/03).

40-7-117. Theft of property valued at more than $500 in retail or wholesale establishments — Arrest by peace officer without warrant.

Any peace officer may arrest without warrant any person the officer has probable cause for believing has committed theft of property with a value of more than five hundred dollars ($500) in retail or wholesale establishments. “Probable cause,” as used in this section, includes, but is not limited to, the statement of a merchant containing facts and circumstances demonstrating that the officer relied on the elements enumerated in § 40-7-116(b).

Acts 1957, ch. 164, § 2; T.C.A., § 40-825; Acts 1983, ch. 326, § 3; 1990, ch. 1030, § 18.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.158.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

40-7-118. Use of citations in lieu of continued custody of an arrested person.

  1. As used in this section, unless the context otherwise requires:
    1. “Citation” means a written order issued by a peace officer requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time. The order shall require the signature of the person to whom it is issued;
    2. “Magistrate” means any state judicial officer, including the judge of a municipal court, having original trial jurisdiction over misdemeanors or felonies; and
      1. “Peace officer” means an officer, employee or agent of government who has a duty imposed by law to:
        1. Maintain public order;
        2. Make arrests for offenses, whether that duty extends to all offenses or is limited to specific offenses; and
        3. Investigate the commission or suspected commission of offenses; and
      2. “Peace officer” also includes an officer, employee or agent of government who has the duty or responsibility to enforce laws and regulations pertaining to forests in this state.
    1. A peace officer who has arrested a person for the commission of a misdemeanor committed in the peace officer's presence, or who has taken custody of a person arrested by a private person for the commission of a misdemeanor, shall issue a citation to the arrested person to appear in court in lieu of the continued custody and the taking of the arrested person before a magistrate. If the peace officer is serving an arrest warrant or capias issued by a magistrate for the commission of a misdemeanor, it is in the discretion of the issuing magistrate whether the person is to be arrested and taken into custody or arrested and issued a citation in accordance with this section in lieu of continued custody. The warrant or capias shall specify the action to be taken by the serving peace officer who shall act accordingly.
      1. This subsection (b) does not apply to an arrest for the offense of driving under the influence of an intoxicant as prohibited by § 55-10-401, unless the offender was admitted to a hospital, or detained for medical treatment for a period of at least three (3) hours, for injuries received in a driving under the influence incident.
      2. This subsection (b) does not apply to any misdemeanor offense for which § 55-10-207 or § 55-12-139 authorizes a traffic citation in lieu of arrest, continued custody and the taking of the arrested person before a magistrate.
    2. A peace officer may issue a citation to the arrested person to appear in court in lieu of the continued custody and the taking of the arrested person before a magistrate if a person is arrested for:
      1. The offense of theft which formerly constituted shoplifting, in violation of § 39-14-103;
      2. Issuance of bad checks, in violation of § 39-14-121;
      3. Use of a revoked or suspended driver license in violation of § 55-50-504, § 55-50-601 or § 55-50-602;
      4. Assault or battery as those offenses are defined by common law, if the officer believes there is a reasonable likelihood that persons would be endangered by the arrested person if a citation were issued in lieu of continued physical custody of the defendant; or
      5. Prostitution, in violation of § 39-13-513, if the arresting party has knowledge of past conduct of the defendant in prostitution or has reasonable cause to believe that the defendant will attempt to engage in prostitution activities within a reasonable period of time if not arrested.
  2. A peace officer may arrest and take a person into custody if:
    1. A reasonable likelihood exists that the arrested person will fail to appear in court; or
    2. The prosecution of the offense for which the person was arrested, or of another offense, would thereby be jeopardized.
  3. No citation shall be issued under this section if:
    1. The person arrested requires medical examination or medical care, or if the person is unable to care for the person's own safety;
    2. There is a reasonable likelihood that the offense would continue or resume, or that persons or property would be endangered by the arrested person;
    3. The person arrested cannot or will not offer satisfactory evidence of identification, including the providing of a field-administered fingerprint or thumbprint which a peace officer may require to be affixed to any citation;
    4. [Deleted by 2019 amendment.]
    5. [Deleted by 2019 amendment.]
    6. The person demands to be taken immediately before a magistrate or refuses to sign the citation;
    7. The person arrested is so intoxicated that the person could be a danger to the person's own self or to others;
    8. There are one (1) or more outstanding arrest warrants for the person; or
    9. The person is subject to arrest pursuant to § 55-10-119.
  4. In issuing a citation, the officer shall:
    1. Prepare a written order which shall include the name and address of the cited person, the offense charged and the time and place of appearance;
    2. Have the offender sign the original and duplicate copy of the citation. The officer shall deliver one (1) copy to the offender and retain the other; and
    3. Release the cited person from custody.
  5. By accepting the citation, the defendant agrees to appear at the arresting law enforcement agency prior to trial to be booked and processed. Failure to so appear is a Class A misdemeanor.
  6. If the person cited fails to appear in court on the date and time specified or fails to appear for booking and processing prior to the person's court date, the court shall issue a bench warrant for the person's arrest.
  7. Whenever a citation has been prepared, delivered and filed with a court as provided in this section, a duplicate copy of the citation constitutes a complaint to which the defendant shall answer. The duplicate copy shall be sworn to by the issuing officer before any person authorized by law to administer oaths.
  8. Nothing in this section shall be construed to affect a peace officer's authority to conduct a lawful search even though the citation is issued after arrest.
  9. Any person who intentionally, knowingly or willfully fails to appear in court on the date and time specified on the citation or who knowingly gives a false or assumed name or address commits a Class A misdemeanor, regardless of the disposition of the charge for which the person was originally arrested. Proof that the defendant failed to appear when required constitutes prima facie evidence that the failure to appear is willful.
  10. Whenever an officer makes a physical arrest for a misdemeanor and the officer determines that a citation cannot be issued because of one (1) of the seven (7) reasons enumerated in subsection (d), the officer shall note the reason for not issuing a citation on the arrest ticket. An officer who, on the basis of facts reasonably known or reasonably believed to exist, determines that a citation cannot be issued because of one (1) of the seven (7) reasons enumerated in subsection (d) shall not be subject to civil or criminal liability for false arrest, false imprisonment or unlawful detention.
    1. Each citation issued pursuant to this section shall have printed on it in large, conspicuous block letters the following:

      NOTICE: FAILURE TO APPEAR IN COURT ON THE DATE ASSIGNED BY THIS CITATION OR AT THE APPROPRIATE POLICE STATION FOR BOOKING AND PROCESSING WILL RESULT IN YOUR ARREST FOR A SEPARATE CRIMINAL OFFENSE WHICH IS PUNISHABLE BY A JAIL SENTENCE OF ELEVEN (11) MONTHS AND TWENTY-NINE (29) DAYS AND/OR A FINE OF UP TO TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500).

    2. Each person receiving a citation under this section shall sign this citation indicating the knowledge of the notice listed in subdivision (l )(1). The signature of each person creates a presumption of knowledge of the notice and a presumption of intent to violate this section if the person should not appear as required by the citation.
    3. Whenever there are changes in the citation form notice required by this subsection (l ), a law enforcement agency may exhaust its existing supply of citation forms before implementing the new citation forms.
  11. This section shall govern all aspects of the issuance of citations in lieu of the continued custody of an arrested person, notwithstanding any provision of Rule 3.5 of the Tennessee Rules of Criminal Procedure to the contrary.
  12. In cases in which:
    1. The public will not be endangered by the continued freedom of the suspected misdemeanant; and
    2. The law enforcement officer has reasonable proof of the identity of the suspected misdemeanant,
    3. [Deleted by 2019 amendment.]

      the general assembly finds that the issuance of a citation in lieu of arrest of the suspected misdemeanant will result in cost savings and increased public safety by allowing the use of jail space for dangerous individuals and/or felons and by keeping officers on patrol. Accordingly, the general assembly encourages all law enforcement agencies to so utilize misdemeanor citations and to encourage their personnel to use those citations when reasonable and according to law.

Acts 1981, ch. 500, §§ 1, 2; T.C.A., § 40-827; Acts 1983, ch. 200, § 1; 1984, ch. 553, §§ 1, 2; 1985, ch. 320, §§ 1-8, 10, 11; 1988, ch. 932, § 1; 1989, ch. 591, § 113; 1991, ch. 16, § 1; 1993, ch. 241, §§ 68-70; 1996, ch. 644, § 1; 2002, ch. 619, § 1; 2012, ch. 737, § 3; 2019, ch. 316, §§ 1-4.

Compiler's Notes. Acts 2012, ch. 737, § 5 provided that the act, which added subdivision (c)(9), shall be known and may be cited as the “Ricky Otts Act.”

Acts 2012, ch. 737, § 6 provided that the act, which added subdivision (c)(9), shall apply to prohibited conduct occurring on or after July 1, 2012.

Amendments. The 2019 amendment added (c) and redesignated former (c)-(m) as present (d)-(n); deleted former (c)(4) and (5), which read: “(4) The prosecution of the offense for which the person was arrested, or of another offense, would thereby be jeopardized; (5) A reasonable likelihood exists that the arrested person will fail to appear in court;”; in former (j), substituted “eight (8)” for “seven (7)” preceding “reasons” twice; and deleted former (m)(3), which read: “There is no reason to believe the suspected misdemeanant will not appear as required by law,”.

Effective Dates. Acts 2019, ch. 316, § 5. May 9, 2019.

Cross-References. Authority of a police officer to arrest without a warrant, § 40-7-103.

Citation in lieu of arrest, Tenn. R. Crim. P. 3.5.

Penalty for Class A misdemeanor, § 40-35-111.

Persons issued citations, failure to appear, § 39-16-609.

Release citations for misdemeanants, § 40-7-120.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 3.5 of the Tennessee Rules of Criminal Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 1.14.

Law Reviews.

Criminal Procedure — State v. Williams: Pretextual Vehicle Stops and the Fourth Amendment, 23 Mem. St. U.L. Rev. 421 (1993).

Attorney General Opinions. Police sergeant appointed deputy court clerk to attest to citations, OAG 98-0138 (8/7/98).

Constables as peace officers, OAG 99-025 (2/16/99).

T.C.A. § 40-7-118(h) authorizes a peace officer to make a search incident to arrest before issuing a citation in “lieu of continued custody” when an officer has reasonable suspicion that a subject is armed and dangerous or when there is a need to preserve evidence, OAG 02-116 (10/18/02).

A municipal officer may arrest a person for violation of a city code or ordinance when that person fails to provide the officer with proper identification, OAG 06-167 (11/9/06).

Security guards issuing criminal summons or citations, OAG 07-002 (1/4/07).

Police officer who receives specific information about unlawful conduct from another officer can make a warrantless arrest and issue a citation to a misdemeanant even though the misdemeanor was not committed in the presence of the arresting officer, OAG 08-181 (12/1/08).

Exceptions for citations under T.C.A. § 40-7-118.  OAG 10-31, 2010 Tenn. AG LEXIS 31 (3/11/10).

T.C.A. § 55-10-207 requires the person cited to sign a traffic citation, whether the citation is written on paper or on an electronic device. But a stand-alone blank screen is not a citation, and the officer may not require the person cited to sign a blank screen that is not part of a citation. An officer has authority to physically arrest a person who refuses to sign an electronic traffic citation. OAG 16-26, 2016 Tenn. AG LEXIS 26 (7/22/2016).

NOTES TO DECISIONS

1. Purpose.

Under T.C.A. § 40-7-118, individuals who have committed relatively minor offenses are released, but only on the “promise” that they will appear in court, thereby allowing the use of jail space for dangerous individuals and/or felons. State v. Walker, 12 S.W.3d 460, 2000 Tenn. LEXIS 67 (Tenn. 2000).

2. Identification Exception.

In essence, this “cite and release” statute works on an honor system, operating under the assumption that the misdemeanant will act in good faith by furnishing accurate identification so that an officer can be assured that the misdemeanant is actually the person he claims to be. State v. Walker, 12 S.W.3d 460, 2000 Tenn. LEXIS 67 (Tenn. 2000).

An objective standard of reasonableness should be used to determine whether evidence of identification offered to an officer by a misdemeanant is satisfactory evidence of identification within the meaning of T.C.A. § 40-7-118. State v. Walker, 12 S.W.3d 460, 2000 Tenn. LEXIS 67 (Tenn. 2000).

In rejecting evidence of identification, the officer should have a specific articulable reason to doubt that the cited person has accurately identified himself before taking him into custody. State v. Walker, 12 S.W.3d 460, 2000 Tenn. LEXIS 67 (Tenn. 2000).

Arrest for driving without a license and running a red light was authorized because: (1) If defendant had merely received a citation, he would have continued driving without a license; and (2) When asked for identification, defendant told the arresting officer that he did not have proper identification. State v. Jackson, 313 S.W.3d 270, 2008 Tenn. Crim. App. LEXIS 231 (Tenn. Crim. App. Mar. 25, 2008).

3. Custodial Arrest Held Unlawful.

Officer lacked objective reason for rejecting evidence of identification where despite that misdemeanant did not have driver's license in possession, gave misdemeanant name, driver's license number, and birth date which the officer verified with the dispatcher; therefore, because the custodial arrest was unlawful, the search incident to the arrest was also unlawful, and the seized evidence had to be suppressed. State v. Walker, 12 S.W.3d 460, 2000 Tenn. LEXIS 67 (Tenn. 2000).

Because defendant was driving eight miles over the speed limit, the officer had probable cause to initiate a traffic stop, and therefore he was authorized pursuant to T.C.A. § 55-10-207 to issue a traffic citation; however, the officer was precluded from arresting defendant under T.C.A. § 40-7-118, as no statutory exceptions were present. State v. Berrios, 235 S.W.3d 99, 2007 Tenn. LEXIS 745 (Tenn. Aug. 17, 2007).

4. Equal Protection Claim.

There was no basis in federal law for arguing that the arrestee's equal protection rights were violated by not following T.C.A. § 40-7-118(b)(1) without some showing that it was discriminatorily enforced. Henderson v. Reyda, 2006 FED App. 557N, 192 Fed. Appx. 392, 2006 U.S. App. LEXIS 20058 (6th Cir. Tenn. 2006).

5. Suppression of Evidence.

Where crack cocaine was found hidden in defendant's rectum when officers took defendant to an emergency room and a doctor performed a digital rectal examination, suppression was warranted because the doctor had to be treated as a government agent, and the unconsented paralysis, intubation, and rectal examination amounted to an unreasonable search. United States v. Booker, 728 F.3d 535, 2013 U.S. App. LEXIS 17716, 2013 FED App. 251P (6th Cir. Aug. 26, 2013).

Trial court did not err by denying defendant's motion to suppress evidence found on defendant because the initial stop of defendant's vehicle for a traffic violation was justified and, when the police officer asked for defendant's license, defendant gave the officer an identification card, which led to the officer finding that defendant did not have a valid driver's license as it had been suspended. The officer then could have immediately arrested defendant based on defendant's driving on a suspended license. State v. Carero, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 63 (Tenn. Crim. App. Feb. 3, 2020).

6. Entry Based on Attachment.

Service of an attachment issued following defendant's failure to appear on a misdemeanor citation did not justify entry into his residence because the State failed to establish that the police had reason to believe that defendant was inside the residence when they knocked on the door; an officer drove by the residence and indicated that there appeared to be no activity inside the house. State v. Davidson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App. Mar. 10, 2015), aff'd, 509 S.W.3d 156, 2016 Tenn. LEXIS 913 (Tenn. Dec. 19, 2016).

40-7-119. Strip searches restricted.

  1. As used in this section, “strip search” means having an arrested person remove or arrange some or all of the person's clothing so as to permit a visual inspection of the genitals, buttocks, anus, female breasts or undergarments of the arrested person.
  2. No person arrested for a traffic, regulatory or misdemeanor offense, except in cases involving weapons, a controlled substance or controlled substance analogue, shall be strip searched unless there is reasonable belief that the individual is concealing a weapon, a controlled substance, a controlled substance analogue or other contraband.

Acts 1982, ch. 759, § 1; T.C.A., § 40-828; Acts 2012, ch. 848, § 28.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.179.

40-7-120. Release citations for misdemeanants.

  1. As used in this section, except as otherwise specifically indicated:
    1. “Citation” means a written order issued by a sheriff requiring a person accused of violating the law to appear in a designated court at a specified date and time. The order shall require the signature of the person to whom it is issued; and
    2. “Magistrate” means any state judicial officer, including the judge of a municipal court, having original trial jurisdiction over misdemeanors or felonies.
  2. A sheriff or sheriff's designee may, at a county jail, issue a release citation to any person who has been arrested for a violation of law which is punishable as a misdemeanor and who has been booked and processed for that violation.
  3. The citation shall demand the person cited to appear in court at a stated time and place, and it shall state the name and address of the person cited, the name of the issuing sheriff and the offense charged. The time specified on the citation to appear shall be as fixed by the sheriff issuing the citation.
  4. The citation shall be executed in triplicate, the original to be delivered to the court specified in the citation, one (1) copy to be given to the person cited, and one (1) copy to be retained by the sheriff issuing the citation. The original citation delivered to the court shall be sworn to by the issuing sheriff before a magistrate or official lawfully assigned that duty by a magistrate. The person cited shall signify the person's acceptance of the citation and the person's agreement to appear in court as directed by signing the original citation.
  5. Whenever a release citation has been prepared, accepted and the original citation delivered to the court as provided in this section, the original citation delivered to the court shall constitute a complaint to which the person cited must answer, and neither the arresting officer nor the sheriff issuing the citation shall be required to file any other affidavit of complaint with the court.
  6. The signature of the person cited shall create a presumption of knowledge of notice to appear and a presumption of intent to violate this section if the person should not appear as required by the citation.
  7. The citation must give notice to the person cited that the person's failure to appear as ordered is punishable as a separate misdemeanor offense. Each citation issued pursuant to this section must have printed on it in large, conspicuous block letters, the following:

    NOTICE: FAILURE TO APPEAR IN COURT ON THE DATE ASSIGNED BY THIS CITATION WILL RESULT IN YOUR ARREST FOR A SEPARATE CRIMINAL OFFENSE WHICH IS PUNISHABLE BY A JAIL SENTENCE OF UP TO ELEVEN (11) MONTHS, TWENTY-NINE (29) DAYS AND/OR A FINE OF UP TO TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500).

  8. Any person who intentionally, knowingly or willfully fails to appear in court on the date and time specified on the citation commits a separate misdemeanor offense, regardless of the disposition of the charge for which the person was originally arrested, and upon conviction shall be punished by imprisonment in the county jail or workhouse for not more than eleven (11) months, twenty-nine (29) days, or by a fine of not more than two thousand five hundred dollars ($2,500) or, in the discretion of the court, by both imprisonment and fine. Proof that the defendant failed to appear when required constitutes prima facie evidence that the failure to appear is willful.
  9. If the person cited fails to appear in court on the date and time specified, the court may issue a bench warrant for the person's arrest.
  10. Nothing in this section shall be construed to affect a sheriff's authority to conduct a lawful search even though the citation is issued after arrest.
  11. No citation shall be issued under this section if:
    1. The person arrested requires medical examination or medical care, or if the person is unable to care for the person's own safety;
    2. A reasonable likelihood exists that the arrested person will fail to appear in court;
    3. The person demands to be taken immediately before a magistrate or refuses to sign the citation;
    4. The person arrested is so intoxicated that the person could pose a danger to the person's own self or to others;
    5. There are one (1) or more outstanding arrest warrants for the person;
    6. There is a reasonable likelihood that the offense would continue or resume, or that persons or property would be endangered by the arrested person;
    7. The person arrested cannot or will not offer satisfactory evidence of identification, including the providing of a field-administered fingerprint or thumbprint which a peace officer may require to be affixed to any citation; and
    8. The prosecution of the offense for which the person was arrested, or of another offense, would thereby be jeopardized.
  12. This section governs all aspects of the issuance of release citations to an arrested person, notwithstanding any provision of Rule 3.5 of the Tennessee Rules of Criminal Procedure to the contrary.
  13. No sheriff may issue a release citation as authorized in this section after the issuance of a mittimus.
  14. This section is intended to be in addition and supplemental to § 40-7-118, and shall not be construed to supersede that section as it existed on July 1, 1989.
  15. This section does not apply to any county having a metropolitan form of government with a population of more than four hundred seventy thousand (470,000), according to the 1980 federal census or any subsequent federal census.

Acts 1989, ch. 556, §§ 1-3; 2019, ch. 486, §§ 5, 6.

Compiler's Notes. The misdemeanor offense in this section may be affected by the Criminal Sentencing Reform Act of 1989. See §§ 39-11-114, 40-35-110, 40-35-111.

For tables of U.S. decennial populations of counties, see volume 13 and its supplement.

Amendments. The 2019 amendment, in (g), substituted “must” for “shall” twice, and substituted “UP TO ELEVEN (11) MONTHS, TWENTY-NINE (29) DAYS AND/OR A FINE OF UP TO TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500).” for “UP TO SIX (6) MONTHS AND/OR A TWO HUNDRED FIFTY DOLLAR ($250) FINE.”; and in (h), substituted “eleven (11) months, twenty-nine (29) days, or by a fine of not more than two thousand five hundred dollars ($2,500)” for “six (6) months, or by a fine of not more than two hundred fifty dollars ($250)”.

Effective Dates. Acts 2019, ch. 486, § 15. July 1, 2019.

40-7-121. Body cavity searches — Warrant requirement — Waiver — Liability.

  1. As used in this section, unless the context otherwise requires, “body cavity search” means an inspection, probing or examination of the inside of a person's anus, vagina or genitals for the purpose of determining whether the person is concealing evidence of a criminal offense, a weapon, a controlled substance, a controlled substance analogue or other contraband.
  2. No person shall be subjected to a body cavity search by a law enforcement officer or by another person acting under the direction, supervision or authority of a law enforcement officer unless the search is conducted pursuant to a search warrant issued in accordance with Rule 41 of the Tennessee Rules of Criminal Procedure.
  3. The issue of whether a person subjected to a body cavity search consented to the search is irrelevant and shall not be considered in determining whether the search was a valid one under this section, unless the consent is in writing on a preprinted form and contains the following language:

    Waiver of Warrant Requirement and Consent to Search Body Cavities

    I knowingly and voluntarily consent to have my body cavities searched immediately by law enforcement personnel in the manner provided by the laws of Tennessee. By signing this consent form, I knowingly and voluntarily waive my right to require that a warrant be obtained from an appropriate judge or magistrate before my body cavities are searched.

    I understand that a body cavity search may involve both visual and physical probing into my genitals and anus.

    I understand that I would not be prejudiced or penalized by declining to give my consent to be searched in this manner.

  4. Nothing in this section shall be construed as amending or altering the relevant statutory and common law with regard to strip searches that do not meet the definition of a “body cavity search.”
  5. This section shall not apply to a body cavity search conducted pursuant to a written jail or prison security procedures policy if the policy requires such a search at the time it was conducted.
  6. A law enforcement officer who conducts or causes to be conducted a body cavity search in violation of this section, and the governmental entity employing that officer, shall be subject to a civil cause of action as now provided by law.
  7. Body cavity searches conducted pursuant to this section must be performed by a licensed physician or a licensed nurse.
  8. No physician, registered nurse, or licensed practical nurse, acting at the written request of a law enforcement officer with a search warrant, written waiver or consent to perform a body cavity search, shall incur any civil or criminal liability as a result of the search or examination, except for any damages or criminal liability that may result from the negligence, gross negligence, willful misconduct or unlawful conduct of the person conducting the examination or search. Neither the hospital nor other employer of health care professionals, acting at the written request of a law enforcement officer with a search warrant, written waiver or consent to perform a body cavity search, shall incur any civil or criminal liability, except for negligence, gross negligence, willful misconduct or unlawful conduct, as a result of the act of examination or search.

Acts 1993, ch. 490, § 1; 2002, ch. 569, § 1; 2012, ch. 848, § 29.

40-7-122. Fee for booking and processing of persons subject to arrest or summons.

In addition to any other fees the sheriff is entitled to demand and receive in accordance with § 8-21-901, a county legislative body may vote to impose an additional fee of not more than ten dollars ($10.00) for the booking and processing of each person subject to arrest or summons. The fee shall be collected at the same time and in the same manner as other fees are collected by a sheriff in accordance with title 8, chapter 21, part 9. The fee shall not be charged to any person determined by the court to be indigent.

Acts 2007, ch. 586, § 2.

40-7-123. Development of standardized written procedure of verifying citizenship status.

  1. The Tennessee peace officer standards and training commission shall develop a standardized written procedure for verifying the citizenship status of individuals who are arrested, booked, or confined for any period in a county or municipal jail or detention facility and reporting to the appropriate immigration and customs enforcement detention and removal operations field office those individuals who may be in violation of the Immigration and Naturalization Act (8 U.S.C § 1101 et seq.).
  2. When a person is arrested, booked or confined for any period in the jail of the county or any municipality, the keeper of the jail shall utilize the above-referenced procedure to verify the citizenship status of each arrested, booked, or otherwise confined individual and report those individuals to the appropriate immigration and customs enforcement detention and removal operations field office if the keeper of the jail determines that the individual is in violation of the Immigration and Naturalization Act, or if such status cannot be determined.
  3. This section shall not apply to any county or municipality that has entered into and is operating under a memorandum of understanding with the United States department of homeland security concerning enforcement of federal immigration laws.
  4. This section shall not apply to any county or municipality while it participates in the United States immigration and customs enforcement criminal alien program (CAP).

Acts 2010, ch. 1112, § 1.

40-7-124. Immunity from prosecution for possession of drug paraphernalia when officers alerted of presence of hypodermic needle or other sharp objects prior to search.

  1. Before searching a person, a person's premises, or a person's vehicle, a law enforcement officer may ask the person whether the person is in possession of a hypodermic needle or other sharp object that may cut or puncture the officer, or whether a hypodermic needle or other sharp object is on the premises or in the vehicle to be searched. If there is a hypodermic needle or other sharp object on the person, on the person's premises, or in the person's vehicle, and the person alerts the law enforcement officer of such before the search, the person shall not be charged with or prosecuted for possession of drug paraphernalia for the hypodermic needle or other sharp object.
  2. Subsection (a) does not apply to any other drug paraphernalia that may be present and found during the search.

Acts 2015, ch. 77, § 1.

Part 2
Uniform Law on Fresh Pursuit

40-7-201. Short title.

This part shall be known and may be cited as the “Uniform Law on Fresh Pursuit.”

Acts 1939, ch. 146, § 8; C. Supp. 1950, § 11546.1 (Williams, § 11546.8); T.C.A. (orig. ed.), § 40-809.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.164.

Law Reviews.

The Rights of the Criminal Defendant: Arrest to Preliminary Hearing (Edward M. Ellis), 34 Tenn. L. Rev. 482.

NOTES TO DECISIONS

1. Arrest Found Valid.

Evidence established that officer had reasonable cause to believe defendants were engaged in the felony of stealing livestock at the time they were initially stopped, that there was probable cause to effect their arrest, and that the arrest was legal under the reciprocal fresh pursuit laws enacted by the state of Tennessee and the state of North Carolina. State v. Foulks, 653 S.W.2d 430, 1983 Tenn. Crim. App. LEXIS 387 (Tenn. Crim. App. 1983).

40-7-202. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Fresh pursuit” includes fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony;
    1. It also includes the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed;
    2. “Fresh pursuit” does not necessarily imply instant pursuit, but pursuit without unreasonable delay; and
  2. “State” includes the District of Columbia.

Acts 1939, ch. 146, §§ 4, 5; C. Supp. 1950, §§ 11546.5, 11546.6 (Williams, §§ 11546.4, 11546.5); T.C.A. (orig. ed.), §§ 40-810, 40-811.

40-7-203. Power of officers from other states to arrest.

  1. Any member of a duly organized state, county or municipal peace unit of another state, who enters this state in fresh pursuit, and continues within this state in that fresh pursuit, of a person in order to arrest the person on grounds that the person is believed to have committed a felony in that other state, shall have the same authority to arrest and hold the person in custody as has any member of any duly organized state, county or municipal peace unit of this state to arrest and hold in custody a person on the ground that the person is believed to have committed a felony in this state.
  2. This section shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.

Acts 1939, ch. 146, §§ 1, 3; C. Supp. 1950, §§ 11546.2, 11546.4 (Williams, §§ 11546.1, 11546.3); T.C.A. (orig. ed.), §§ 40-812, 40-813.

Law Reviews.

The Tennessee Law of Arrest (Rollin M. Perkins and Frank C. Rand), 2 Vand. L. Rev. 509.

40-7-204. Examination by magistrate.

  1. If an arrest is made in this state by an officer of another state in accordance with § 40-7-203, the officer shall, without unnecessary delay, take the person arrested before a magistrate who shall conduct a hearing for the purpose of determining the lawfulness of the arrest.
  2. If the magistrate determines that the arrest was lawful, the magistrate shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state, or admit the person to bail for that purpose.
  3. If the magistrate determines that the arrest was unlawful, the magistrate shall discharge the person arrested.

Acts 1939, ch. 146, § 2; C. Supp. 1950, § 11546.3 (Williams, § 11546.2); T.C.A. (orig. ed.), § 40-814.

Cross-References. Admission to bail, title 40, ch. 11, part 1.

Extradition, title 40, ch. 9.

Officials designated as magistrates, § 40-1-106.

Secretary of state, § 4-3-2101 et seq.

Law Reviews.

The Right to a Preliminary Hearing and Effective Assistance of Counsel at a Preliminary Hearing in Tennessee, 43 Tenn. L. Rev. 635 (1976).

40-7-205. Certification of law to other states.

It is the duty of the secretary of state to certify a copy of this part to the executive department of each of the states of the United States.

Acts 1939, ch. 146, § 6; C. Supp. 1950, § 11546.7 (Williams, § 11546.6); T.C.A. (orig. ed.), § 40-815.

Chapter 8
Rewards for Apprehension

40-8-101. Offer of reward by governor.

  1. The governor is authorized to offer a reward for information leading to the apprehension, arrest and conviction of a person or persons who have committed, attempted to commit or conspired to commit a criminal offense in this state. Any reward offered shall not exceed the following amounts for the following classification of offenses:
    1. Fifty thousand dollars ($50,000) for an offense that is classified as a Class A or B felony; and
    2. Five thousand dollars ($5,000) for an offense that is classified as a Class C, D or E felony.
  2. The fifty-thousand-dollar and five-thousand-dollar reward maximums imposed by subsection (a) shall apply only to state appropriated funds. The governor may increase the amount of any reward offered by use of funds from the reward pool fund created in this part.
  3. When the governor offers a reward pursuant to this section, the governor may place any reasonable conditions upon collection of the reward as the governor deems advisable or necessary.

Code 1858, §§ 183, 5335 (deriv. Acts 1805, ch. 44, § 1; 1837-1838, ch. 170, § 1); Acts 1881, ch. 157, §§ 1, 2; Shan., §§ 233, 7313; Code 1932, §§ 175, 11915; Acts 1971, ch. 40, § 1; 1971, ch. 284, § 1; modified; 1980, ch. 636, § 8; T.C.A. (orig. ed.), § 40-901; Acts 1997, ch. 284, § 4.

Cross-References. Penalties for Class A, B, C, D and E felonies, § 40-35-111.

NOTES TO DECISIONS

1. Collusive Surrender.

No reward will be paid to accessory after the fact who procures the surrender of the fugitive by collusion in agreeing to allow a portion of the reward to the fugitive. Kerr v. Hambright, 2 Shan. 63 (1876).

Where a reward has been offered for the apprehension of an alleged criminal, who voluntarily surrenders himself to a woman for the purpose of enabling her to obtain the reward, and remained with her until an officer, sent for by her, under his direction, comes and receives him into custody, she, in no just sense, arrested the culprit, and is not entitled to the reward. Kerr v. Hambright, 2 Shan. 63 (1876).

40-8-102. Reward for persons obstructing railroad tracks.

The governor shall, when officially informed that an obstruction has been placed upon any railroad track by any person, for the purpose of derailing the locomotive, tender or cars, offer a reward for the offender's apprehension and conviction.

Code 1858, §§ 184, 5336 (deriv. Acts 1855-1856, ch. 94, § 11); Shan., §§ 234, 7314; Code 1932, §§ 176, 11916; T.C.A. (orig. ed.), § 40-902.

Cross-References. Obstructing highway or other passageway, § 39-17-307.

Railroads, title 65, ch. 6.

40-8-103. Conditions for reward.

  1. No person is entitled to the reward offered under §§ 40-8-101 and 40-8-102 until the offender is delivered to the civil authority, and confined in jail or admitted to bail.
  2. No person is entitled to the reward unless the offender is apprehended within five (5) years from the date of the governor's proclamation, and before the prosecution of the offense is barred by lapse of time.

Code 1858, §§ 5337, 5338; Shan., §§ 7315, 7316; Code 1932, § 11918; T.C.A. (orig. ed.), §§ 40-903, 40-904.

40-8-104. Payment of reward.

The reward will be paid by the state treasurer, upon the warrant of the commissioner of finance and administration, by order of the governor, drawn in favor of the person who may, in the opinion of the governor, be entitled to the reward.

Code 1858, § 5339 (deriv. Acts 1805, ch. 44, § 2; 1837-1838, ch. 170, § 1); Acts 1881, ch. 157, § 2; Shan., § 7317; Code 1932, § 11919; modified; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 40-905.

40-8-105. Reward pool fund.

The governor is authorized to establish and administer a “reward pool fund” which shall be a special account in the state general fund. All monetary donations or gifts made by private citizens and corporations for the purpose of offering a reward or enhancing a state-funded reward offered pursuant § 40-8-101, for information leading to the apprehension, arrest and conviction of a person or persons who have committed, attempted to commit or conspired to commit a criminal offense in this state shall be deposited in the reward pool fund and invested for the benefit of the fund by the state treasurer pursuant to § 9-4-603. Amounts in the fund shall not revert to the general fund of the state but shall, together with interest income credited to the fund, remain available for expenditure in subsequent fiscal years. Except as provided in § 40-8-106, the governor shall have the sole discretion to determine if and how much of the fund shall be offered in a particular criminal case. However, if the donor places any lawful restrictions or instructions on use of the donation at the time it is given, those restrictions or instructions shall be honored.

Acts 1997, ch. 284, § 5; 2017, ch. 246, § 3.

Amendments. The 2017 amendment added “Except as provided in § 40-8-106,” at the beginning of the next to last sentence.

Effective Dates. Acts 2017, ch. 246, § 4. July 1, 2017.

40-8-106. Reward.

  1. A reward of one thousand dollars ($1,000) shall be awarded to any person whose report of voter fraud through the state election coordinator's voter fraud hotline leads to a conviction. If more than one (1) person reports the same incident of voter fraud, the reward shall be divided and equally distributed to each person.
  2. The reward awarded pursuant to subsection (a) shall be paid from the reward pool fund, created by § 40-8-105.

Acts 2017, ch. 246, § 2.

Effective Dates. Acts 2017, ch. 246, § 4.  July 1, 2017.

Chapter 9
Uniform Criminal Extradition Act

40-9-101. Short title.

This chapter shall be known and may be cited as the “Uniform Criminal Extradition Act.”

Acts 1951, ch. 240, § 28 (Williams, § 11935.26); T.C.A. (orig. ed.), § 40-1001.

Cross-References. Appeal as of right by state in criminal actions, T.R.A.P. 3.

Extradition of persons taken in fresh pursuit by officers from other states, § 40-7-204.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.2.

Law Reviews.

International Extradition (M. Cherif Bassiouni), 36 Tenn. L. Rev. 1.

NOTES TO DECISIONS

1. Validity.

Extradition does not rest on state statutes but originates in the United States Constitution as implemented by congressional enactment, and state legislation on the subject is valid only insofar as it is ancillary to and in aid of federal requirements. State ex rel. Wiley v. Waggoner, 508 S.W.2d 535, 1973 Tenn. LEXIS 407 (Tenn. 1973).

2. Judicial Review.

Judicial review in the asylum state of a governor's extradition action is limited to the following issues: (1) Whether the extradition documents are in order on their face; (2) Whether the petitioner has been charged with a crime in the demanding state; (3) Whether the petitioner is the person named in the request for extradition; and (4) Whether the petitioner is a fugitive. Yates v. Gilless, 841 S.W.2d 332, 1992 Tenn. Crim. App. LEXIS 446 (Tenn. Crim. App. 1992).

3. Time Limit.

Tennessee extradition laws contain no time limit relating to when a governor's warrant may be executed. Yates v. Gilless, 841 S.W.2d 332, 1992 Tenn. Crim. App. LEXIS 446 (Tenn. Crim. App. 1992).

4. Construction With Other Acts.

The chief difference between the Extradition Act and the Compact on Detainers is that the Compact procedures result in only a temporary transfer to the receiving state. State ex rel. Young v. Rose, 670 S.W.2d 238, 1984 Tenn. Crim. App. LEXIS 3001 (Tenn. Crim. App. 1984).

40-9-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Executive authority” includes the governor, and any person performing the functions of governor in a state other than this state;
  2. “Governor” includes any person performing the functions of governor by authority of the law of this state; and
  3. “State,” referring to a state other than this state, refers to any other state or territory organized or unorganized of the United States.

Acts 1951, ch. 240, § 1 (Williams, § 11935.1); T.C.A. (orig. ed.), § 40-1002.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

40-9-103. Warrant of arrest for crime in another state.

Whenever any person within this state is charged on the oath of any credible person before any judge or other magistrate of this state with the commission of a crime in any other state, and, except in cases arising under § 40-9-113, with having fled from justice; or whenever a complaint has been made before any judge or other magistrate in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in that other state and that the accused has been charged in that other state with the commission of the crime, and, except in cases arising under § 40-9-113, has fled therefrom and is believed to have been found in this state, the judge or magistrate shall issue a warrant directed to the sheriff of the county in which the oath or complaint is filed directing the sheriff to apprehend the person charged, wherever the person may be found in this state, and bring the person before the issuing judge or magistrate or any other judge, court or magistrate who may be conveniently accessible to the place where the arrest may be made, to answer the charge or complaint and affidavit. A certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.

Acts 1951, ch. 240, § 13 (Williams, § 11935.13); T.C.A. (orig. ed.), § 40-1003.

Cross-References. Officials designated as magistrates, § 40-1-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.7, 2.37, 2.38, 2.40.

NOTES TO DECISIONS

1. Construction.

Once a petitioner is brought within the boundaries of this state, absent outrageous or illegal conduct by the arresting authorities so extreme as to shock the conscience, he may be placed upon trial for any charges pending. Elliott v. Johnson, 816 S.W.2d 332, 1991 Tenn. Crim. App. LEXIS 191 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 285 (Tenn. July 1, 1991).

Because petitioner was a Tennessee state prisoner and subject to temporary transfer to the Commonwealth of Kentucky pursuant to the Interstate Compact on Detainers, T.C.A. § 40-31-101 et seq., T.C.A. § 40-9-103 of the Uniform Criminal Extradition Act did not apply. Accordingly, the trial court did not err by denying petitioner's petition for a writ of habeas corpus to contest the transfer. Heard v. Lee, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 57 (Tenn. Crim. App. Jan. 29, 2019).

Decisions Under Prior Law

1. Purpose.

Former law on detaining fugitives from other states had no bearing on habeas corpus proceeding of prisoner contesting extradition under governor's warrant, since these sections merely contemplated holding the prisoner until warrant of arrest by the governor might arrive and on the arrival of such warrant prior proceedings were immaterial. State ex rel. Van Scoyoc v. State, 171 Tenn. 357, 103 S.W.2d 26, 1936 Tenn. LEXIS 97 (1937).

2. Fugitive.

One was a fugitive from justice where, after being charged with a crime in the demanding state, he fled therefrom. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

3. —Factual Question.

Whether one was a fugitive subject to rendition was question of fact. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

4. —Pending an Appeal.

Where petitioners voluntarily appeared in the court of the demanding state and were convicted and released on bond pending their appeal, and thereafter left that state and failed to appear on affirmance by court of appeals, they were fugitives. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

5. Warrant of Magistrate.

6. —Temporary Detention.

A magistrate of the peace had power to issue a warrant for the temporary detention of a fugitive, while the governor was absent. State ex rel. Redwine v. Selman, 157 Tenn. 641, 12 S.W.2d 368, 1928 Tenn. LEXIS 232 (1928).

7. —Sufficiency.

A warrant for the arrest of a named person, charging him with the offense of fugitive from justice, is insufficient. Reichman v. Harris, 252 F. 371, 1918 U.S. App. LEXIS 2071 (6th Cir. Tenn. 1918).

Notwithstanding alleged irregularities in the warrant and mittimus, if petitioner for habeas corpus was subject to extradition, the trial judge committed no error in disregarding the irregularities claimed and remanding petitioner to custody. State ex rel. Knowles v. Taylor, 160 Tenn. 44, 22 S.W.2d 222, 1929 Tenn. LEXIS 73 (1929).

8. Effect of Governor's Warrant.

Prisoner was not entitled to release on writ of habeas corpus on the ground that he had been denied a preliminary hearing and that fugitive from justice warrant did not charge a crime if warrant of arrest by governor had arrived. State ex rel. Zahnd v. Head, 185 Tenn. 462, 206 S.W.2d 426, 1947 Tenn. LEXIS 352 (1947).

9. Presence of Accused in State of Crime.

It was not necessary that the evidence show absolutely that the party charged with the crime was present in the demanding state at the exact moment at which the crime was shown to have been committed, but it was sufficient that the evidence show such party was in the demanding state on or about the time alleged. State ex rel. Brown v. Grosch, 177 Tenn. 619, 152 S.W.2d 239, 1940 Tenn. LEXIS 61 (1941).

10. Waiver.

Where a person voluntarily appeared in trial court, he waived question of court's jurisdiction; and, after he subsequently fled the state, he could not resist extradition. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

40-9-104. Arrest without warrant for felony in another state.

The arrest of a person may be lawfully made by an officer or a private citizen without a warrant upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one (1) year; but when so arrested, the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against the person under oath setting forth the ground for the arrest as in § 40-9-103. Thereafter, the person's answer shall be heard as if the person had been arrested on a warrant.

Acts 1951, ch. 240, § 14 (Williams, § 11935.14); T.C.A. (orig. ed.), § 40-1004.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.7, 2.37, 2.38.

Tennessee Jurisprudence, 13 Tenn. Juris., False Imprisonment, § 4.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Arrest Without Warrant.

A citizen of this state could not be arrested here by citizens of another state, without warrant, for an offense committed in another state. Tarver v. State, 90 Tenn. 485, 16 S.W. 1041, 1891 Tenn. LEXIS 31 (1891), superseded by statute as stated in, State v. Maupin, — S.W.2d —, 1991 Tenn. Crim. App. LEXIS 818 (Tenn. Crim. App. Oct. 7, 1991).

40-9-105. Commitment awaiting extradition.

If, from the examination before the judge or magistrate, it appears that the person held is the person charged with having committed the crime alleged and that the person probably committed the crime, and, except in cases arising under § 40-9-113, that the person has fled from justice, the judge or magistrate must commit the person to jail by a warrant reciting the accusation for a time specified in the warrant as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused gives bail as provided in § 40-9-106, or until the accused is legally discharged.

Acts 1951, ch. 240, § 15 (Williams, § 11935.15); T.C.A. (orig. ed.), § 40-1005.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.7.

Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, § 3.

40-9-106. Admission to bail.

Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, the judge or magistrate must admit the person arrested to bail by bond or undertaking, with sufficient sureties, and in any sum that the judge or magistrate deems proper, for the person's appearance before the judge or magistrate at a time specified in the bond or undertaking, and for the person's surrender, to be arrested upon the warrant of the governor of this state.

Acts 1951, ch. 240, § 16 (Williams, § 11935.16); T.C.A. (orig. ed.), § 40-1006.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.7, 2.38.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 3; 13 Tenn. Juris., Extradition, § 1.

Law Reviews.

The Tennessee Bail System — What's the Best Cure? (Michael D. Brent), 8 Mem. St. U.L. Rev. 121.

NOTES TO DECISIONS

1. In General.

Tennessee does not authorize bail for prisoners after their arrest upon the rendition warrant of the governor of Tennessee: once a fugitive is served with a rendition warrant of the governor of the asylum state, he is not entitled to bail and no constitutional abridgement is involved. Tennessee statutes authorize bail in such extradition cases only for the prisoner's surrender for arrest upon the warrant of the governor of this state. Mandina v. State, 749 S.W.2d 472, 1985 Tenn. Crim. App. LEXIS 3289 (Tenn. Crim. App. 1985).

40-9-107. Forfeiture of bail.

If the prisoner is admitted to bail, and fails to appear and surrender according to the condition of the person's bond, the court, by proper order, shall declare the bond forfeited. Recovery may be had on the bond in the name of the state as in the case of other bonds or undertakings given by the accused in criminal proceedings within this state.

Acts 1951, ch. 240, § 18 (Williams, § 11935.18); T.C.A. (orig. ed.), § 40-1007.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.7.

Law Reviews.

The Tennessee Bail System — What's the Best Cure? (Michael D. Brent), 8 Mem. St. U.L. Rev. 121.

40-9-108. Disposition of prisoner on expiration of time specified in warrant of commitment — No discharge pending proceedings before governor.

  1. If the accused is not arrested under warrant of the governor by the expiration of the time specified in the warrant, bond or undertaking, the judge or magistrate may discharge the accused or recommit the accused to a further day, or may again take bail for the accused's appearance and surrender, as provided in § 40-9-106; and at the expiration of the second period of commitment, or if the accused has been bailed and appeared, according to the terms of the bond or undertaking, the judge or magistrate may either discharge the accused, or require the accused to enter into a new bond or undertaking, to appear and surrender at another day.
  2. Whenever any fugitive from justice awaiting extradition to another state files a protest or requests a hearing before the governor of this state, prior to the returning of the fugitive to the other state, no judge or court in this state shall have the authority to order the release or discharge of the fugitive, pending the final disposition of the extradition proceeding before the governor. Likewise, the surety on any bail or appearance bond shall not be released from liability until final disposition of the matter by the governor of this state.

Acts 1951, ch. 240, § 17 (Williams, § 11935.17); 1965, ch. 238, § 1; T.C.A. (orig. ed.), § 40-1008.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.7, 2.18, 2.38, 2.43.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 3.

NOTES TO DECISIONS

1. Discharge by Courts.

When the governor has granted a hearing, no judge or court of Tennessee may release or discharge a prisoner pending final resolution of the extradition proceeding before the governor. Horne v. Wilson, 316 F. Supp. 247, 1970 U.S. Dist. LEXIS 10513 (E.D. Tenn. 1970).

2. Bail.

Tennessee does not authorize bail for prisoners after their arrest upon the rendition warrant of the governor of Tennessee: once a fugitive is served with a rendition warrant of the governor of the asylum state, he is not entitled to bail and no constitutional abridgement is involved. Tennessee statutes authorize bail in such extradition cases only before the prisoner's surrender for arrest upon the warrant of the governor of this state. Mandina v. State, 749 S.W.2d 472, 1985 Tenn. Crim. App. LEXIS 3289 (Tenn. Crim. App. 1985).

40-9-109. Governor's duty to cause arrest and extradition of fugitives.

Subject to the qualifications of this chapter and the provisions of the Constitution of the United States controlling, and acts of congress in pursuance of the United States Constitution, it is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state any person charged in that state with treason, a felony or another crime, who has fled from justice and is found in this state.

Acts 1951, ch. 240, § 2 (Williams, § 11935.2); T.C.A. (orig. ed.), § 40-1009.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, §§ 1, 3.

40-9-110. Contents of demands from other states.

No demand for the extradition of a person charged with a crime in another state shall be recognized by the governor unless in writing and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.

Acts 1951, ch. 240, § 3 (Williams, § 11935.3); T.C.A. (orig. ed.), § 40-1010.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.50.

Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, § 3.

NOTES TO DECISIONS

1. Indictment.

Allegation of three indictments with only one indictment documented in the supporting papers does not amount to a “defect on the face” of the extradition request. State ex rel. Jones v. Gann, 584 S.W.2d 235, 1979 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. 1979).

2. Copy of Warrant.

A capias of the demanding state which authorized any peace officer of the demanding state to arrest relator upon the affidavit of the crime duly filed against him satisfies the requirement that a copy of the warrant accompany the application, which is to show governor of asylum state that there is a valid charge against relator in demanding state. State ex rel. Trigg v. Thompson, 196 Tenn. 147, 270 S.W.2d 332, 1954 Tenn. LEXIS 442 (1954).

3. Copy of Foreign Indictment.

In the absence of evidence in the record, the supreme court would presume that certified copies of indictment in foreign state were before the governor. State ex rel. Hourigan v. Robinson, 195 Tenn. 101, 257 S.W.2d 9, 1953 Tenn. LEXIS 306 (1953).

4. Rendition Warrant.

5. —Effect.

The issuance of a rendition warrant by the executive of the asylum state creates a prima facie case that the person sought to be extradited was lawfully charged with crime in the demanding state and has fled therefrom. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955); Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956).

6. —Sufficiency.

Rendition warrant based on indictment which merely averred that offense upon which extradition was based was committed “in the fall of 1949” was adequate. Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956).

7. Proceedings in Asylum State.

The courts of the asylum state will not entertain technical objections in the demanding state but to the contrary will leave the petitioner to his rights in the courts of such demanding state to test the validity of the accusation there against him. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955).

Contention that indictment was prematurely brought in demanding state could not be raised in habeas corpus proceeding to secure discharge from arrest under governor's executive warrant. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955).

The court cannot consider alleged defects in the indictment upon habeas corpus to avoid extradition. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955); Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956).

Person sought to be extradited may show that he was not in the demanding state at the time of the commission of the crime and procure his release by habeas corpus, but such absence must be shown beyond a reasonable doubt and the court will not discharge such person on habeas corpus where there is merely contradictory evidence as to his presence in the other state. Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956); State ex rel. Johnson v. Turner, 207 Tenn. 93, 338 S.W.2d 558, 1960 Tenn. LEXIS 430 (1960).

8. —Appeal and Review.

On appeal, the supreme court, in absence of evidence to the contrary, must presume that proper extradition requests were made and the requirements of the statute were complied with. State ex rel. Johnson v. Turner, 207 Tenn. 93, 338 S.W.2d 558, 1960 Tenn. LEXIS 430 (1960).

40-9-111. Investigation by prosecuting officer.

When a demand is made upon the governor of this state by the executive authority of another state for the surrender of a person so charged with a crime, the governor may call upon the attorney general and reporter or any prosecuting officer in this state to investigate or assist in investigating the demand, and to report to the governor the situation and circumstances of the person so demanded, and whether the person ought to be surrendered.

Acts 1951, ch. 240, § 4 (Williams, § 11935.4); T.C.A. (orig. ed.), § 40-1011.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.43.

NOTES TO DECISIONS

1. Provision Discretionary.

The key word in the statute, “may,” means that the code provision is discretionary and not mandatory. State ex rel. Lingerfelt v. Gardner, 591 S.W.2d 777, 1979 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. 1979).

2. Foreign Law Status.

The right of the governor of Tennessee to surrender one to the authorities of a sister state depends upon the status of the law on the date of demand by such sister state rather than at the date alleged as that of the commission of the crime. State ex rel. Bryant v. Fleming, 195 Tenn. 419, 260 S.W.2d 161, 1953 Tenn. LEXIS 358 (1953).

40-9-112. Allegations required in demand for extradition.

A warrant of extradition must not be issued unless the documents presented by the executive authority making the demand show that:

  1. Except in cases arising under § 40-9-113, the accused was present in the demanding state at the time of the commission of the alleged crime, and thereafter fled from the state;
  2. The accused is now in this state; and
  3. The accused is lawfully charged by indictment found or by information filed by a prosecuting officer and supported by affidavit to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that the accused has been convicted of a crime in that state and has escaped from confinement or broken parole.

Acts 1951, ch. 240, § 5 (Williams, § 11935.5); T.C.A. (orig. ed.), § 40-1012.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.3, 2.43, 2.54.

Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, § 3.

NOTES TO DECISIONS

1. Habeas Corpus Attack of Indictment.

Contention that indictment was prematurely brought in demanding state could not be raised in habeas corpus proceeding to secure discharge from arrest under governor's warrant. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955).

The court cannot consider alleged defects in the indictment upon habeas corpus to avoid extradition. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955); Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956).

2. Presence in Demanding State.

Person sought to be extradited may show that he was not in demanding state at the time of the commission of the crime and procure his release by habeas corpus, but such absence must be shown beyond a reasonable doubt and court will not discharge such person where evidence is merely contradictory as to his presence in other state. Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956); State ex rel. Johnson v. Turner, 207 Tenn. 93, 338 S.W.2d 558, 1960 Tenn. LEXIS 430 (1960).

3. Effect of Rendition Warrant.

The issuance of a rendition warrant by the executive of the asylum state creates a prima facie case that the person sought to be extradited was lawfully charged with crime in demanding state and had fled therefrom. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955); Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956).

4. Sufficiency of Warrant.

Requisition warrant specifically stating that appellants committed acts in Tennessee which resulted in the showing of obscene films in Georgia was sufficient to bring the warrant within the bounds of T.C.A. § 40-9-113. State ex rel. Bradford v. Thomas, 653 S.W.2d 755, 1983 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. 1983).

40-9-113. Acts resulting in crime in state in which accused is not present.

The governor of this state may surrender, on demand of the executive authority of any other state, any person in this state charged in that other state in the manner provided in § 40-9-112 with committing an act in this state, or in a third state, intentionally resulting in crime in the state whose executive authority is making the demand. The provisions of this chapter not otherwise inconsistent shall apply to such cases, notwithstanding that the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.

Acts 1951, ch. 240, § 6 (Williams, § 11935.6); T.C.A. (orig. ed.), § 40-1013.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.3, 2.9, 2.54.

NOTES TO DECISIONS

1. Act Committed in Tennessee.

In habeas corpus proceeding for discharge from arrest under executive warrant of governor, contention of executor, who qualified in North Carolina and who was indicted in that state for embezzlement of funds, that after qualifying he returned to his home in Tennessee and that any conversion must have necessarily occurred in Tennessee was without merit as he was under duty to account to the North Carolina court and he could be extradited for an act committed in Tennessee resulting in a crime in North Carolina. State ex rel. Sandford v. Cate, 199 Tenn. 195, 285 S.W.2d 343, 1955 Tenn. LEXIS 445 (1955).

2. Sufficiency of Warrant.

Requisition warrant specifically stating that appellants committed acts in Tennessee which resulted in the showing of obscene films in Georgia was sufficient to bring the warrant within the bounds of T.C.A. § 40-9-113. State ex rel. Bradford v. Thomas, 653 S.W.2d 755, 1983 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. 1983).

Mere fact criminal charge involved conspiracy was insufficient to relieve demanding state of duty of complying with T.C.A. § 40-9-113. Earhart v. Hicks, 656 S.W.2d 873, 1983 Tenn. Crim. App. LEXIS 404 (Tenn. Crim. App. 1983).

Extradition documents, as well as the proof, must show that the accused committed acts in the asylum state or a third state that resulted in a crime in the demanding state. Earhart v. Hicks, 656 S.W.2d 873, 1983 Tenn. Crim. App. LEXIS 404 (Tenn. Crim. App. 1983).

3. Defendant Not Present in Foreign State.

Where Alabama governor's request for extradition specified that defendant was not physically present in the state of Alabama when the crime was committed, T.C.A. § 40-9-113 was applicable, and the fact that defendant was not in Alabama when he allegedly violated the Alabama Securities Act would afford him no defense in an extradition proceeding. Ratliff v. Thomas, 652 S.W.2d 919, 1983 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. 1983).

40-9-114. Guilt or innocence not inquired into.

The guilt or innocence of the accused as to the crime of which the accused is charged may not be inquired into by the governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as provided in this chapter shall have been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.

Acts 1951, ch. 240, § 20 (Williams, § 11935.20); T.C.A. (orig. ed.), § 40-1014.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.43.

NOTES TO DECISIONS

1. Habeas Corpus Relief.

Statements by petitioner seeking habeas corpus writ that he had been kidnapped and that his extradition was merely for collection of private debts did not warrant conclusion that extradition act had not been complied with. State ex rel. Hourigan v. Robinson, 195 Tenn. 101, 257 S.W.2d 9, 1953 Tenn. LEXIS 306 (1953).

Under this section which implements U.S. Const., art. 4, § 2, where a defendant filed a habeas corpus petition contesting extradition to another state, the issuance of this rendition warrant created a prima facie case that the petitioner was lawfully charged with crime in the demanding state and fled therefrom, and, although he may show that he was not in the demanding state at the time of the alleged crime, to procure his release under habeas corpus he must show such absence beyond a reasonable doubt; and the court of the asylum state cannot consider technical objections to the charge in the demanding state, but must leave the petitioner to his rights to raise such objections in the proceedings in the demanding state. McLaughlin v. State, 512 S.W.2d 657, 1974 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. 1974); State ex rel. Ezell v. Evatt, 512 S.W.2d 673, 1974 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. 1974).

Trial court's finding that petitioners should be discharged and not extradited because the proof showed they did not commit acts intentionally resulting in crime in the demanding state converted the habeas corpus proceedings into a mini-trial on the substantive issues and is in conflict with the statutory proscription in T.C.A. § 40-9-114. Earhart v. Hicks, 656 S.W.2d 873, 1983 Tenn. Crim. App. LEXIS 404 (Tenn. Crim. App. 1983).

In habeas corpus proceedings instituted to determine the validity of the petitioner's custody where petitioner is held in connection with an extradition proceeding, the asylum state is limited to consideration of: (1) Whether the extradition documents are in order on their face; (2) Whether the demanding state has charged the petitioner with a crime; (3) Whether the person named in the request for extradition is the petitioner before the court; and (4) Whether the petitioner was in the demanding state at the time the criminal offense was committed. Guilt or innocence of the fugitive is not an issue in these proceedings. Elliott v. Johnson, 816 S.W.2d 332, 1991 Tenn. Crim. App. LEXIS 191 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 285 (Tenn. July 1, 1991).

Decisions Under Prior Law

1. In General.

In order to defeat extradition proceedings upon the ground that the party charged was not a fugitive from justice, his absence at or about the time of the crime must be shown beyond a reasonable doubt. State ex rel. Brown v. Grosch, 177 Tenn. 619, 152 S.W.2d 239, 1940 Tenn. LEXIS 61 (1941).

2. Habeas Corpus.

In habeas corpus proceeding to test validity of an extradition warrant, the only questions open to consideration are whether petitioners are fugitives and whether they are charged with crime in demanding state, but the sufficiency of the indictment, as technical pleading, in demanding state will not be inquired into, nor validity of the foreign judgment. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

3. New Charges After Warrant Issued.

The filing of new and additional charges and the substitution of new indictments for those to which nonresident defendants had entered their voluntary appearances violated no constitutional right of relators testing validity of warrant issued by the governor of this state. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

40-9-115. Demand for person held on charge of crime in Tennessee.

If a criminal prosecution has been instituted against the person under the laws of this state and is still pending, the governor, at the governor's discretion, either may surrender the person on the demand of the executive authority of another state, or may hold the person until the person has been tried and discharged, or convicted and punished in this state.

Acts 1951, ch. 240, § 19 (Williams, § 11935.19); T.C.A. (orig. ed.), § 40-1015.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.18.

NOTES TO DECISIONS

1. Failure to Comply.

County sheriff's deputy's failure to comply with Tennessee governor's warrant requirements by not serving upon defendant until after defendant was paroled from a Tennessee sentence, did not justify dismissal of governor's warrant and defendant's release from custody without extradition to the other state. Yates v. Gilless, 841 S.W.2d 332, 1992 Tenn. Crim. App. LEXIS 446 (Tenn. Crim. App. 1992).

Decisions Under Prior Law

1. Review of Governor's Action.

The determination of whether a person charged with a crime in this state as well as in demanding state shall be tried here or sent to the sister state for trial rests with the executive branch of the government and not with the judicial branch, and the action of the governor in waiving the jurisdiction of this state is binding upon the courts and may not be reviewed. State ex rel. Brown v. Grosch, 177 Tenn. 619, 152 S.W.2d 239, 1940 Tenn. LEXIS 61 (1941).

Collateral References.

Extradition of fugitive in custody under charge in asylum state. 42 A.L.R. 585.

40-9-116. Issuance of warrant of arrest.

If the governor decides that the demand should be complied with, the governor shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to a sheriff, marshal, coroner or other person whom the governor may think fit to entrust with the execution of the arrest warrant. The warrant must substantially recite the facts necessary to the validity of its issuance.

Acts 1951, ch. 240, § 7 (Williams, § 11935.7); T.C.A. (orig. ed.), § 40-1016.

Cross-References. Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.19.

Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, § 3.

NOTES TO DECISIONS

1. Constitutionality.

Provision for issuance of warrant of arrest by governor pursuant to extradition request of a sister state was consistent with the United States Constitution and statutes, was an executive function and did not violate Tennessee constitutional provisions relative to separation of powers. State ex rel. Wiley v. Waggoner, 508 S.W.2d 535, 1973 Tenn. LEXIS 407 (Tenn. 1973).

2. Origin of Authority.

Extradition does not rest on state statutes but originates in the United States Constitution as implemented by congressional enactment and state legislation on the subject is valid only insofar as it is ancillary to and in aid of federal requirements. State ex rel. Wiley v. Waggoner, 508 S.W.2d 535, 1973 Tenn. LEXIS 407 (Tenn. 1973).

3. Immaterial Defect.

A warrant of rendition authorizing Kentucky's agent to arrest the fugitive, although directing Tennessee authorities in general to apprehend him and deliver him to the Kentucky agent, was not materially defective. State ex rel. Jones v. Gann, 584 S.W.2d 235, 1979 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. 1979).

4. Effect of Defective Warrant.

Even though warrant of governor of Tennessee was defective in authorizing a Kentucky sheriff to apprehend petitioner, it had no bearing on determinative question in habeas corpus proceeding as to whether petitioner was under indictment in Kentucky and was a fugitive from justice. State ex rel. Hourigan v. Robinson, 195 Tenn. 101, 257 S.W.2d 9, 1953 Tenn. LEXIS 306 (1953).

Decisions Under Prior Law

1. Authority of Governor.

Personal discretion of governor is required in the issuance of a warrant, so that a fugitive was entitled to a discharge where the warrant under which he was held was issued by governor's secretary, in governor's name, while governor was absent from the state. State ex rel. Redwine v. Selman, 157 Tenn. 641, 12 S.W.2d 368, 1928 Tenn. LEXIS 232 (1928).

2. Presumptions from Issuance of Warrant.

The issuance of the warrant by the governor of this state creates a prima facie case that the alleged fugitive was lawfully charged with a crime in the demanding state and that he is a fugitive from justice of that state. State ex rel. Brown v. Grosch, 177 Tenn. 619, 152 S.W.2d 239, 1940 Tenn. LEXIS 61 (1941).

3. Insufficiency of Warrant.

Prisoner held under extradition proceedings was discharged, on appeal in habeas corpus proceedings, for insufficiency of governor's warrant. State ex rel. Sivley v. Hackett, 161 Tenn. 602, 33 S.W.2d 422, 1930 Tenn. LEXIS 45 (1930).

If persons, held in custody under a warrant of the governor of Tennessee issued pursuant to a demand of the governor of North Carolina for their return to that state as fugitives from justice, were not fugitives within the meaning of this section and the United States Constitution and statutes, they were entitled to be discharged in a habeas corpus proceeding by them to test the validity of the governor's warrant. State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841, 1933 Tenn. LEXIS 135, 91 A.L.R. 1246 (1933), cert. denied, Tennessee ex rel. Lea v. Brown, 292 U.S. 638, 54 S. Ct. 717, 78 L. Ed. 1491, 1934 U.S. LEXIS 881 (1934).

40-9-117. Recall or reissuance of warrant.

The governor may recall the governor's warrant of arrest, or may issue another warrant whenever the governor deems proper.

Acts 1951, ch. 240, § 21 (Williams, § 11935.21); T.C.A. (orig. ed.), § 40-1017.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.19, 2.45.

40-9-118. Authority given by governor's warrant.

  1. The warrant shall authorize the officer or other person to whom directed to arrest the accused at any place where the accused may be found within the state and to command the aid of all sheriffs and other peace officers in the execution of the warrant, and to deliver the accused, subject to this chapter, to the duly authorized agent of the demanding state.
  2. Whether the prisoner or fugitive so charged is bound to appear before any court, committed to jail or discharged, any person authorized by the warrant of the governor of this state may at any time take the accused person or fugitive into custody, and the apprehension shall immediately be a discharge of the bond or other proceeding, if there is one pending in any court of this state.
  3. Every officer or other person empowered to make the arrest shall have the same authority in arresting the accused to command assistance in the arrest, as sheriffs and other officers have by law in the execution of any criminal process directed to them, with the same penalties against those who refuse their assistance.

Acts 1951, ch. 240, §§ 8, 9 (Williams, §§ 11935.8, 11935.9); 1965, ch. 238, § 2; T.C.A. (orig. ed.), §§ 40-1018, 40-1019.

Cross-References. Authority in executing warrants generally, §§ 40-6-210, 40-6-211, 40-6-212, 40-6-213.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.45.

Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, § 3.

NOTES TO DECISIONS

1. Immaterial Defect.

A warrant of rendition authorizing Kentucky's agent to arrest the fugitive, although directing Tennessee authorities in general to apprehend him and deliver him to the Kentucky agent, was not materially defective. State ex rel. Jones v. Gann, 584 S.W.2d 235, 1979 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. 1979).

40-9-119. Information to person arrested — Habeas corpus.

No person arrested upon a warrant shall be delivered over to the agent whom the executive authority demanding the person has appointed to receive the person, unless the person has been informed of the demand made for surrender and of the crime with which the person is charged, and that the person has the right to demand legal counsel. If the prisoner, the prisoner's friends or counsel shall state that the person or they desire to test the legality of the arrest, the prisoner shall be taken forthwith before a judge of a court of record in this state, who shall fix a reasonable time to be allowed the prisoner within which to apply for a writ of habeas corpus. When the writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the public prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the agent of the demanding state.

Acts 1951, ch. 240, § 10 (Williams, § 11935.10); T.C.A. (orig. ed.), § 40-1020.

Cross-References. Habeas corpus proceedings, title 29, ch. 21.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.19, 2.39, 2.40, 2.41, 2.45, 2.83, 2.84.

Tennessee Jurisprudence, 14 Tenn. Juris., Habeas Corpus, § 7.

NOTES TO DECISIONS

1. Nature of Proceedings.

Extradition proceedings are summary proceedings of a civil nature designed to test whether a rendition warrant, legal process issued by the governor of the asylum state which mandates that the defendant be arrested and turned over to agents of demanding state, is valid. State ex rel. Sneed v. Long, 871 S.W.2d 148, 1994 Tenn. LEXIS 12 (Tenn. 1994).

2. Information to Person Arrested.

Extradition warrant was not defective in that it recited that defendant was charged with embezzlement in Arkansas while indictment allegedly recited facts showing that the offense was more closely related to fraudulent breach of trust where indictment as contained in record was sufficient to fully inform accused of nature of charges against him. State ex rel. Nunn v. Bradshaw, 207 Tenn. 384, 340 S.W.2d 884, 1960 Tenn. LEXIS 468 (1960).

3. Exhaustion.

Exhaustion of state remedies requirement for applying to a federal court applies to extradition proceedings. Horne v. Wilson, 306 F. Supp. 753, 1969 U.S. Dist. LEXIS 8825 (E.D. Tenn. 1969).

4. Failure to Return to Extraditing State.

Where defendant was wanted in Alabama on a felony conviction, but he returned instead to Tennessee, whereupon governors of Alabama and Tennessee signed warrants for defendant's detention and extradition to Alabama, defendant's failure to return to Alabama after court had upheld validity of warrants in a habeas corpus hearing pursuant to this section made him a fugitive from justice. Burnette v. State, 536 S.W.2d 353, 1976 Tenn. Crim. App. LEXIS 403 (Tenn. Crim. App. 1976), cert. denied, Burnette v. Tennessee, 429 U.S. 858, 97 S. Ct. 157, 50 L. Ed. 2d 135, 1976 U.S. LEXIS 2879 (1976).

5. Scope of Review.

Once extradition is granted, judicial review by habeas corpus is limited to consideration of: (1) Whether the extradition documents are in order on their face; (2) Whether the demanding state has charged the petitioner with a crime; (3) Whether the person named in the request for extradition is the petitioner before the court; and (4) Whether the petitioner is a fugitive. State ex rel. Jones v. Gann, 584 S.W.2d 235, 1979 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. 1979), citing Michigan v. Doran, 439 U.S. 282, 99 S. Ct. 530, 58 L. Ed. 2d 521, 1978 U.S. LEXIS 147 (1978); State ex rel. Sneed v. Long, 871 S.W.2d 148, 1994 Tenn. LEXIS 12 (Tenn. 1994).

Petitioner contesting extradition through habeas corpus could not raise issues involving possible constitutional violations committed by asylum state. State ex rel. Sneed v. Long, 871 S.W.2d 148, 1994 Tenn. LEXIS 12 (Tenn. 1994).

6. Waiver.

When a person accused in one state of being a fugitive from another state waives by agreement his right to resist extradition and the accused person voluntarily accompanies an officer into the demanding state without requiring the use of extradition papers, that person may not object to the regularity of the extradition process or claim it was not carried forward in good faith; after surrendering himself to the receiving state, he cannot attack, in the receiving state, the method of surrender. Whittaker v. Ramsey, 513 F. Supp. 423, 1980 U.S. Dist. LEXIS 16616 (E.D. Tenn. 1980), aff'd without opinion, 657 F.2d 270, 1981 U.S. App. LEXIS 13718 (6th Cir. 1981).

7. Evidence.

A person may show that he was not in the requesting state at the time of the crime, but this showing must be beyond a reasonable doubt. Where evidence is merely contradicting as to his presence, he has not sustained the burden. State v. Whitt, 753 S.W.2d 369, 1988 Tenn. Crim. App. LEXIS 314 (Tenn. Crim. App. 1988).

40-9-120. Confinement of prisoner en route.

The officer or person executing the governor's warrant of arrest or the agent of the demanding state to whom the prisoner may have been delivered may, when necessary, confine the prisoner in the jail of any county or city through which the prisoner may pass. The keeper of the county or city jail must receive and safely keep the prisoner until the person having charge of the prisoner is ready to proceed on the person's route, that person being chargeable with the expense of keeping.

Acts 1951, ch. 240, § 12 (Williams, § 11935.12); T.C.A. (orig. ed.), § 40-1022.

40-9-121. Demand for fugitive from Tennessee.

  1. The governor of this state may demand of the executive authority of any other state or territory, any fugitive from justice, or other person charged with treason, felony or other crime in this state and may appoint an agent to demand and receive the person and return the person to this state.
  2. When it is desired to have returned to this state a person charged in this state with a crime, and the person is imprisoned or is held under criminal proceedings then pending against the person in another state or territory, or the District of Columbia, the governor of this state may agree with the executive authority of the other state or territory for the extradition of the person before the conclusion of the proceedings or the person's term of sentence in the other state or territory, or the District of Columbia, upon condition that the person be returned to the other state or territory at the expense of this state as soon as the prosecution in this state is terminated.
  3. The governor of this state may also surrender on demand of the executive authority of any other state or territory, any person in this state who is charged in the manner provided in this chapter with having violated the laws of the state or territory whose executive authority is making the demand, even though the person left the demanding state involuntarily.

Code 1858, §§ 185, 5340 (deriv. Acts 1847-1848, ch. 121); Shan., §§ 235, 7318; Code 1932, §§ 177, 11920; mod. C. Supp. 1950, § 11924.1; Acts 1967, ch. 270, § 1; 1968, ch. 618, § 1; T.C.A. (orig. ed.), § 40-1023.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.3, 2.86.

Law Reviews.

Recent Developments in Tennessee and Federal Procedure (Donald F. Paine), 36 Tenn. L. Rev. 276 (1969).

NOTES TO DECISIONS

1. Speedy Trial.

Where state prisoner was indicted in Tennessee in 1968 for a crime on which he was arrested in 1960 and was in another state's prison from 1960 to 1968, fact that two alibi witnesses died during eight years between arrest and indictment was sufficient to constitute prejudice so as to make eight years between arrest and indictment a denial of defendant's right to a speedy trial. Edmaiston v. Neil, 452 F.2d 494, 1971 U.S. App. LEXIS 6775 (6th Cir. Tenn. 1971).

2. Forcible Removal to State — Defense.

A defendant indicted for a crime committed in this state cannot escape trial and punishment upon a plea that he was a citizen of another state, where he had his residence and domicile, and where he was forcibly arrested by an armed body of men of this state, and brought here by force, and without authority from his state; that the governor of his state has demanded of the governor of this state his release, which has been refused, and praying that he be discharged. Tartar v. State, 2 Shan. 418 (1877).

The court cannot inquire into the manner and place of defendant's arrest, nor how, or when, or in what manner the presence of the accused, within the jurisdiction of the court, was brought about. Tartar v. State, 2 Shan. 418 (1877).

Once a petitioner is brought within the boundaries of this state, absent outrageous or illegal conduct by the arresting authorities so extreme as to shock the conscience, he may be placed upon trial for any charges pending. Elliott v. Johnson, 816 S.W.2d 332, 1991 Tenn. Crim. App. LEXIS 191 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 285 (Tenn. July 1, 1991).

3. Effect of Return to Another State.

Defendant's return to Kentucky by Tennessee authorities following his conviction in Tennessee did not by itself operate as an implied pardon or commutation of this Tennessee sentence. Carter v. State, 600 S.W.2d 750, 1980 Tenn. Crim. App. LEXIS 278 (Tenn. Crim. App. 1980).

40-9-122. Warrant to agent to return prisoner.

Whenever the governor of this state demands a person charged with a crime in this state from the chief executive of any other state, or from the chief justice or an associate justice of the supreme court of the District of Columbia authorized to receive such demand under the laws of the United States, the governor shall issue a warrant under the seal of this state, to some agent, commanding the agent to receive the person so charged if delivered to the agent and convey the person to the proper officer of the county in this state in which the offense was committed.

Acts 1951, ch. 240, § 22 (Williams, § 11935.22); T.C.A. (orig. ed.), § 40-1024.

40-9-123. Application for requisition of person charged with crime.

When the return to this state of a person charged with a crime in this state is required, the district attorney general, for the county in which the offense is committed, shall present to the governor written application for a requisition for the return of the person charged. The application shall state the name of the person so charged; the crime charged against the person; the approximate time, place and circumstances of its committal; and the state in which the accused is believed to be, including the location of the accused therein at the time the application is made. The application shall also certify that in the opinion of the district attorney general the ends of justice require the arrest and return of the accused to this state for trial and that the proceeding is not instituted to enforce a private claim.

Acts 1951, ch. 240, § 23 (Williams, § 11935.23); modified; T.C.A. (orig. ed.), § 40-1025.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.8, 2.9, 2.10, 2.86.

40-9-124. Application for requisition of escapee, bail jumper, parole violator, probationer, or community corrections violator.

When the return to this state is required for a person who has been convicted of a felony in this state and has escaped from confinement, broken the terms of the person's bail, court-ordered probation, probation pursuant to § 40-35-501(a)(3), or has escaped from or broken the terms of a sentence to any community based alternative to incarceration pursuant to chapter 36 of this title, the district attorney general for the county in which the offense was committed, the director of probation and parole, or the warden of the institution or sheriff of the county from which the escape was made, shall present to the governor a written application for a requisition for the return of the escaped person, in which application shall be stated the name of the person, the crime of which the person was convicted, the circumstances of the person's escape from confinement or placement in the community-based alternative to incarceration, or of the breach of the terms of the person's bail, any form of probation, or parole, and the state in which the person is believed to be, including the location of the person therein at the time application is made. In the case of an application for requisition for escape from, or a breach in the terms of a sentence to, a community based alternative to incarceration, only the district attorney general for the county in which the original offense was committed or the county in which the escape occurred shall have the authority to file the application with the governor.

C. Supp. 1950, § 11924.2; modified; T.C.A. (orig. ed.), § 40-1026; Acts 1991, ch. 241, § 1; 2012, ch. 727, § 9.

Compiler's Notes. For the preamble to the act concerning transfers of certain functions relating to probation and parole services and the community correction grant program from the board of probation and parole to the department of correction, please refer to Acts 2012, ch. 727.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended this section, shall be fully accomplished on or before January 1, 2013.

Cross-References. Supervision of adult offenders, title 40, ch. 28, part 4.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.3, 2.9.

40-9-125. Form and contents of application.

  1. The application shall be verified by affidavit, shall be executed in triplicate and shall be accompanied by three (3) certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the magistrate, stating the offense with which the accused is charged.
  2. The prosecuting officer may also attach any other affidavits and other documents in triplicate as the officer deems proper to be submitted with the application.
  3. One (1) copy of the application with the action of the governor indicated by endorsement thereof, and one (1) of the certified copies of the indictment or complaint or information and affidavit, shall be filed in the office of the secretary of state to remain of record in that office.
  4. The other two (2) copies of all papers shall be forwarded with the governor's requisition.

Acts 1951, ch. 240, § 23 (Williams, § 11935.23); 1968, ch. 618, § 2; T.C.A. (orig. ed.), § 40-1027.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.11, 2.15.

40-9-126. Expenses paid by state.

    1. The demanding agent appointed by the governor under § 40-9-121 to return any fugitive from justice under this chapter to this state for trial in the proper county in which the offense is alleged to have been committed or to other proper official or prison, as the case may be, is authorized to employ a guard or escort sufficient to so return the fugitive from justice to this state and contract the other expenses as are absolutely required in performing the duties of the agent.
    2. In no event shall more than one (1) person be named or designated as demanding agent in any extradition proceeding and only one (1) person shall be paid expenses in returning any fugitive to this state.
    3. An alternate agent may be named and designated, who shall be authorized to go and return the fugitive only when the original demanding agent named or designated is unable to make the trip and return the fugitive.
    4. No guard or escort shall be authorized, and no expenses for a guard or escort shall be paid, unless a request for a guard or escort is set forth and certified to by the district attorney general in the written application for the issuance of requisition papers as now authorized under §§ 40-9-123 — 40-9-125.
    1. Except as provided in § 40-9-127, all of the costs and expenses incurred in the return of any fugitive from justice to this state under this chapter shall be paid out of the treasury of the state of Tennessee on the certificate of the governor by the warrant of the commissioner of finance and administration.
    2. The costs and expenses incurred, subsequent to the issuance of the warrant or requisition by the governor of Tennessee when the demanding agent is unable to return the fugitive from justice to this state under this chapter, after making a bona fide effort to do so, shall be paid in the manner provided for in subdivision (b)(1).
    1. The mileage reimbursement for the demanding agent who returns the fugitive shall be the same as the reimbursement received by a state employee using a personal vehicle for the convenience of the state, in accordance with the comprehensive travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter and all other actual and necessary expenses.
    2. “All other actual and necessary expenses” means and includes the actual expenses for meals and lodging for the demanding agent, alternate agent, guard, escort and the fugitive, plus any other actual expense that the demanding agent might be required to pay in the responding state as a prerequisite to the release of custody of the fugitive to the demanding agent. It also means and includes other items and the costs of those items as now allowed or which may be allowed regular employees of the state of Tennessee under current or subsequent state travel regulations.
    3. The mileage travel allowance shall include all miles traveled both inside or outside this state. No separate travel allowance shall be allowed any guard, escort or fugitive unless the travel is made by public transportation and in that event the actual cost of the public transportation will be reimbursed to the agent, guard or escort.
    4. No mileage travel allowance will be paid unless the personal automobile of the agent is actually used in travel.
    5. Any municipality or other governmental agency in this state which may own, lease or contract for the use of an airplane for the purpose of air travel facilities, and the airplane facilities are used in going after and returning any fugitive from another state, shall be reimbursed the cost of the plane fare for the demanding agent, alternate agent, guard and fugitive in the amount as may be charged by any regular commercial airline, plus other expenses as may be necessary for meals, lodging and the actual expenses incurred in going to and from the airport.
    1. The demanding agent shall make out an itemized statement of the agent's actual and necessary expenses as to the number of miles traveled, including the compensation to be paid any guard and swear to those expenses.
    2. The itemized statement in subdivision (d)(1) shall be submitted to the governor of this state as a condition precedent to the certificate by the governor directing the payment of the account.
    3. Payment to the guard shall be by separate warrant based on the certificate of the governor.

Code 1858, §§ 5341, 5342 (deriv. Acts 1847-1848, ch. 121); Acts 1901, ch. 96, §§ 1, 2; 1905, ch. 447, § 1; Shan., §§ 7319-7320 a1, a2; Code 1932, §§ 11921-11924; Acts 1939, ch. 70, § 1; mod. C. Supp. 1950, § 11924.3; Acts 1951, ch. 34, § 1; modified; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; Acts 1961, ch. 119, §§ 1, 2; 1963, ch. 121, § 1; 1971, ch. 244, § 1; T.C.A. (orig. ed.), §§ 40-1028—40-1031; Acts 1991, ch. 107, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.20.

NOTES TO DECISIONS

1. Averment of Time.

Indictment which charged that violation of Alabama Securities Act was committed within five years before the finding of the indictment satisfied the requirements that there should be a sufficiently definite averment of time in the indictment to show that the offense was committed within the statutory limit where the applicable statute of limitations was five years. Ratliff v. Thomas, 652 S.W.2d 919, 1983 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. 1983).

40-9-127. Expenses paid by county.

  1. When a warrant is sworn before any general sessions judge or any indictment returned by a grand jury, charging any person with a felonious crime and the person has absconded beyond the borders of this state, and on authority of the district attorney general, then the county mayor of the county in which the crime has been committed shall pay to the sheriff or to one (1) officer named by the district attorney general of the county who has gone for the person the same mileage allowance received by a state employee using a personal vehicle for the convenience of the state in accordance with the comprehensive travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter for each mile necessarily traveled in going and coming, both inside and outside the state of Tennessee, and reasonable expenses for meals and lodging. The person so designated shall be known as the “demanding agent,” and shall be empowered to contract with another person to accompany the demanding agent on the trip and to serve as guard, the person having been first approved in writing by the authorities who appointed the demanding agent. Only the demanding agent shall be paid the mileage allowance, as provided in this subsection (a), with only the actual expenses of the guard being paid. When the guard travels with the demanding agent in the personal automobile of the demanding agent, or in any automobile belonging to any political subdivision or agency, no allowance will be granted the guard for transportation expense, and when commercial transportation is used, then only the actual cost of fare.
  2. The demanding agent shall be reimbursed the actual money expended by the demanding agent for transportation costs of the fugitive with no reimbursement being allowed when the fugitive is returned in the personal automobile of the demanding agent and only actual cost of fare for the fugitive when a commercial carrier is used. The demanding agent shall further be reimbursed reasonable expenses of meals and lodging for the fugitive, plus any and all costs, paid by the agent, that are imposed by the responding state as a prerequisite to release of custody of the fugitive to the demanding agent.
  3. Upon the sheriff's or named officer's return, the sheriff or officer shall give to each official named in this section an itemized statement supported with receipts for each item of expense and make a sworn affidavit covering all expenditures. The receipt of the sheriff or named officer so returning the fugitive charged with a felonious crime shall be a voucher for the amount thereof of the chair of the board of county commissioners in the sheriff's settlement with the county; provided, that no designation by the county mayor shall be necessary to authorize the sheriff or named officer to act and draw pay under this section, and that the county mayor shall have no power to designate any person. The officers named by the district attorney general of the county shall not exceed two (2); one (1) to be designated as demanding agent and one (1) to be designated as guard, for each fugitive returned under this section.
  4. In this section, “reasonable expenses” are determined to be in close cost proximity as allowed state employees in the pamphlet, “State of Tennessee — Comprehensive Travel Regulations.”
  5. This section shall apply only when the case is actually tried by a jury, or the defendant pleads guilty.
  6. All sums paid by any county or the county mayor, to the sheriff or named officer for returning an absconding felon shall be certified to the clerk of the criminal court of the county and all sums then to be assessed as part of the costs of the court in the case.

Acts 1953, ch. 176, § 1 (Williams, § 11923.1); 1957, ch. 271, § 1; 1961, ch. 119, § 3; 1963, ch. 359, § 1; 1971, ch. 244, § 2; 1977, ch. 307, § 1; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 40-1032; Acts 1991, ch. 107, § 2; 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.20.

40-9-128. Trial for crimes not specified in requisition.

After a person has been brought back to this state upon extradition proceedings, the person may be tried in this state for other crimes which the person may be charged with having committed here, as well as that specified in the requisition for the person's extradition.

Acts 1951, ch. 240, § 24 (Williams, § 11935.24); T.C.A. (orig. ed.), § 40-1033.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Extradition, § 3.

40-9-129. Construction of chapter.

This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

Acts 1951, ch. 240, § 25 (Williams, § 11935.25); T.C.A. (orig. ed.), § 40-1034.

40-9-130. Waiver.

  1. Nothing in this chapter shall be deemed to constitute a waiver by this state of its right, power or privilege to try a demanded person for a crime committed within this state, or of its right, power or privilege to regain custody of a person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this state, nor shall any proceedings had under this chapter which result in, or fail to result in, extradition be deemed a waiver by this state of any of its rights, privileges or jurisdiction in any way whatsoever.
  2. In the event that the return of a person imprisoned or held under criminal proceedings pending against the person in this state, is requested by another state or territory, by a demand made upon the governor of this state by the executive authority of the other state or territory in the manner provided in this chapter, the governor of this state may, without waiving the rights, power, privileges or jurisdiction of this state in any way, enter into an agreement with the executive authority of the other state or territory for the extradition of the person to the other state or territory, before the conclusion of such proceedings or the person's term of sentence in this state, with or without the condition that at a time agreed upon by the governor of this state and the executive authority of the other state or territory, the person returned to the other state or territory shall be returned to this state. This agreement shall provide that the expense of returning a person to the other state or territory and of returning a person from the other state or territory to this state, if applicable, shall be paid by the other state or territory.
  3. Any waiver of extradition from this state to another state or territory for the purposes of trial, sentence or punishment in the other state or territory, made by a person imprisoned or held under criminal proceedings pending against the person in this state, shall include a waiver of extradition for the return of a person to this state from the other state or territory for trial, sentence or punishment in this state on the charges against the person at the time of the execution of this waiver, at any time agreed upon by the governor of this state and executive authority of the other state or territory, at the time of this waiver or any later time.

Acts 1968, ch. 618, § 3; T.C.A., § 40-1035.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 2.41.

NOTES TO DECISIONS

1. Construction.

Once a petitioner is brought within the boundaries of this state, absent outrageous or illegal conduct by the arresting authorities so extreme as to shock the conscience, he may be placed upon trial for any charges pending. Elliott v. Johnson, 816 S.W.2d 332, 1991 Tenn. Crim. App. LEXIS 191 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 285 (Tenn. July 1, 1991).

2. Waiver Not Found.

The governor's signing of a rendition warrant ordering defendant's return to a state seeking extradition did not waive the state's right to exercise jurisdiction over the defendant and place him on trial for charges pending in the state. Johns v. Bowlen, 942 S.W.2d 544, 1996 Tenn. Crim. App. LEXIS 352 (Tenn. Crim. App. 1996).

3. Disapproval of Implied Waivers.

This section indicates the state's disapproval of implied waivers and pardons. Carter v. State, 600 S.W.2d 750, 1980 Tenn. Crim. App. LEXIS 278 (Tenn. Crim. App. 1980).

Chapter 10
Preliminary Examination

40-10-101. Notice of charge and right to counsel.

When the defendant is brought before a magistrate upon arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate shall immediately inform the defendant of the offense with which the defendant is charged, and of the defendant's right to aid of counsel in every stage of the proceedings.

Code 1858, § 5048; Shan., § 7008; Code 1932, § 11547; T.C.A. (orig. ed.), § 40-1101.

Cross-References. Examination of defendant arrested by private person, § 40-7-113.

Examination of persons taken in fresh pursuit by officers from other states, § 40-7-204.

Officials designated as magistrates, § 40-1-106.

Right to counsel, Tenn. Const., art. 1, § 9; U.S. Const., Amend 6.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 19, 20; 11 Tenn. Juris., Evidence, § 180.

Law Reviews.

A Noble Ideal Whose Time Has Come (Penny J. White), 18 Mem. St. U.L. Rev. 223 (1989).

NOTES TO DECISIONS

1. Purpose.

This section does not require that a prisoner be taken immediately before a committing magistrate but merely prescribes what shall take place at the time the prisoner is taken before the magistrate. State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310, 1966 Tenn. LEXIS 640 (1966); State ex rel. Leighton v. Henderson, 1 Tenn. Crim. App. 598, 448 S.W.2d 82, 1969 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. 1969).

2. Duty of Magistrate.

The obligations imposed by this section are placed on the magistrate and not upon law enforcement officials. Van Zandt v. State, 218 Tenn. 187, 402 S.W.2d 130, 1966 Tenn. LEXIS 637 (1966).

3. Right of Counsel.

Preliminary hearing before magistrate was not a critical stage in proceeding and fact that defendant was not represented by counsel at that time did not deny defendant's constitutional rights particularly in view of fact that no indictment was entered at that time, defendant entered plea of not guilty and testimony was to the effect that defendant was advised of his right to counsel and to remain silent. State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310, 1966 Tenn. LEXIS 640 (1966).

Where after defendant was advised of right of counsel at preliminary hearing he entered plea of guilty without conferring with an attorney, defendant's rights were not prejudiced thereby, especially in view of fact that he entered similar plea of guilty at main hearing after having had court appointed attorneys assigned to his defense. State ex rel. Callahan v. Henderson, 220 Tenn. 417, 417 S.W.2d 789, 1967 Tenn. LEXIS 423 (1967).

4. Noncompliance Affecting Admissibility.

5. —Plea of Guilty.

Where a magistrate did not follow the mandate of this section, his testimony that he read the warrant to the defendant when the committing trial was called and asked him whether he was guilty or not guilty, and that defendant had stated that he pleaded guilty, was held incompetent. Cross v. State, 142 Tenn. 510, 221 S.W. 489, 1919 Tenn. LEXIS 78, 9 A.L.R. 1354 (1920).

6. —Statements and Confessions.

Where the justice of the peace failed to advise prisoners arraigned before him on charge of murder of their right to counsel, or of their right to make a statement in reference to the charges against them, or of their right to waive the making of such a statement and where such justice of the peace did not warn such prisoners that any statements they made could be used against them, statements and confessions by the prisoners at such preliminary hearing were inadmissible before the trial court as was the fact that the prisoners failed to deny incriminating testimony given against them at such preliminary hearing. Polk v. State, 170 Tenn. 270, 94 S.W.2d 394, 1936 Tenn. LEXIS 12 (1936).

Statement of defendant, an uneducated man, to squire concerning killing where squire had not advised defendant of his constitutional rights was inadmissible in trial of defendant charged with voluntary manslaughter. Giles v. State, 185 Tenn. 429, 206 S.W.2d 412, 1947 Tenn. LEXIS 348 (1947).

40-10-102. Time allowed to procure counsel.

The magistrate shall allow the defendant a reasonable time to send for counsel, and, if necessary, shall adjourn the examination for that purpose.

Code 1858, § 5049; Shan., § 7009; Code 1932, § 11548; T.C.A. (orig. ed.), § 40-1102.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.29, 24.84.

Tennessee Jurisprudence, 11 Tenn. Juris., Evidence, § 180.

Law Reviews.

The Right to Counsel in Criminal Prosecutions (Stephen M. Worsham), 30 Tenn. L. Rev. 420.

NOTES TO DECISIONS

1. Duty of Magistrate.

The obligations imposed by this section are placed on the magistrate and not upon law enforcement officials. Van Zandt v. State, 218 Tenn. 187, 402 S.W.2d 130, 1966 Tenn. LEXIS 637 (1966).

40-10-103. Separation and exclusion of witnesses.

The magistrate may make any orders on the examination, in reference to keeping the witnesses separate and apart, or excluding the witnesses during the examination of other witnesses or of the defendant, that the magistrate may think best for the attainment of justice, and shall, on demand of either party, put all witnesses under the rule.

Code 1858, § 5061; Shan., § 7020; Code 1932, § 11559; T.C.A. (orig. ed.), § 40-1114.

NOTES TO DECISIONS

1. Demand by Party — Effect.

The parties as a matter of right can request that witnesses be put under the rule and it is error for court to refuse. Rainwater v. Elmore, 48 Tenn. 363, 1870 Tenn. LEXIS 70 (1870).

2. Newly Discovered Witness.

Where all witnesses have been put under the rule, it is within discretion of judge to allow or not the testimony of a newly discovered witness who has heard other witnesses testify. Smith v. State, 72 Tenn. 428, 1880 Tenn. LEXIS 38 (1880).

Decisions Under Prior Law

1. Demand by Party — Effect.

Witnesses must be put under the rule upon demand of a party, and the refusal of the rule would be the denial of a right to the party demanding it, that might be very fatal to his cause, entitling him to a new trial. Nelson v. State, 32 Tenn. 237, 1852 Tenn. LEXIS 58 (1852).

2. Dispersal of Witnesses During Recess.

Witnesses “under the rule” may be allowed to disperse during the recess of court, with proper instructions, and put back “under the rule” when the court reconvenes. Nelson v. State, 32 Tenn. 237, 1852 Tenn. LEXIS 58 (1852).

40-10-104. Bail.

If the defendant is committed to jail for a bailable offense, the magistrate shall endorse on the commitment the amount of the bail required, and sign the endorsement. The sheriff of the county to which the defendant is committed may discharge the defendant, upon the defendant giving sufficient bail in the sum required, and make immediate return to the court to which the defendant is bound to appear of the bail bond or undertaking.

Code 1858, § 5066; Shan., § 7025; Code 1932, § 11565; T.C.A. (orig. ed.), § 40-1119.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 3.7.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 6.

Law Reviews.

The Justice of the Peace System in Tennessee (T. L. Howard), 13 Tenn. L. Rev. 19.

NOTES TO DECISIONS

1. Sheriff's Powers.

Neither sheriff nor his purported agent had authority to take bail before commitment of prisoner and taking of bail under these circumstances was irregular and void. Columbia Bonding Co. v. State, 225 Tenn. 719, 476 S.W.2d 633, 1972 Tenn. LEXIS 306 (1972).

2. Preliminary Hearing.

The only purpose of a preliminary hearing upon a criminal warrant is to determine whether there is probable cause to believe the accused committed the offense charged and to fix the amount of bail in bailable offenses. State v. D'Anna, 506 S.W.2d 200, 1973 Tenn. Crim. App. LEXIS 235 (Tenn. Crim. App. 1973).

40-10-105. Election by prisoner to perform hard labor.

  1. The defendant, if charged with a misdemeanor and ordered to be committed to the county jail, may elect to perform hard labor for the county pending trial.
  2. It is the duty of the magistrate committing the defendant to inform the defendant of the right to make an election for hard labor, and of the advantages accruing by that election; and if the defendant so elects, the magistrate shall make an order allowing the defendant to do so and shall certify that election to the court at which the defendant is required to appear.
  3. It is the duty of the sheriff to carry every person in the sheriff's custody charged with a misdemeanor before the judge of the court of general sessions within twenty-four (24) hours after receiving the person into custody. It is the duty of the judge to inform the prisoner of the prisoner's right to make an election for hard labor and of the advantages accruing to the prisoner by that election; and if the prisoner elects to perform hard labor, the judge shall make an order allowing the prisoner to do so and shall certify that election to the court at which the prisoner is required to appear. If the prisoner is convicted when tried, it is the duty of the court in determining punishment to take into consideration the amount of labor performed by the defendant; and if the defendant is acquitted, the net amount so earned by the defendant under the election to perform hard labor shall be delivered to the defendant by the county trustee, who shall take the defendant's receipt therefor, which shall be the defendant's voucher.
  4. This section shall apply only to counties as may, by a majority vote of the county legislative bodies at a regular or special session, elect to avail themselves of the right to the labor of a defendant.
  5. The earnings of a defendant under this section shall be the same as that of a misdemeanant inmate and shall be paid to the county trustee and held by the trustee until the final disposition of the prosecution. If the defendant is convicted, it shall be applied by the trustee as the hire of convicts is applied.

Code 1932, § 11564; impl. am. Acts 1978, ch. 934, §§ 7, 36; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-1120.

40-10-106. Reports on elections to perform hard labor.

  1. It is the duty of such magistrate to render to the grand jury of the county on the first day of each jury session of the court, a statement in writing and under oath, of the name of each defendant charged with a misdemeanor committed to the county jail by the magistrate, the date of conviction, and whether or not the magistrate gave the defendant the information required by § 40-10-105.
  2. It is the duty of the sheriff to render to the grand jury of the sheriff's county, on the first day of each jury session of the court, a statement in writing and under oath, of the name of every person charged with a misdemeanor coming into the sheriff's custody since the sheriff's last preceding statement, when the sheriff received the defendant, and when the sheriff carried the defendant before the judge of the court of general sessions, as provided in § 40-10-105.
  3. It is the duty of the judge of the court of general sessions to render to the grand jury of the county on the first day of each jury session of the circuit or criminal court, a statement in writing and under oath, of the name of each defendant brought before the judge by the sheriff under § 40-10-105, of the date when the defendant was so brought before the judge, and whether or not the judge gave the defendant the information required by § 40-10-105.

Code 1932, § 11564; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 40-1121.

40-10-107. Bond of witnesses.

On holding the defendant to answer, the magistrate shall take from each material witness examined by the magistrate on the part of the state a written undertaking, in the sum of two hundred fifty dollars ($250), to appear and testify, at the court at which the defendant is required to answer, on the second day of the term.

Code 1858, § 5067; Shan., § 7026; Code 1932, § 11566; T.C.A. (orig. ed.), § 40-1122.

Textbooks. Tennessee Jurisprudence, 25 Tenn. Juris., Witnesses, § 3.

Law Reviews.

Recent Developments in Tennessee and Federal Procedure (Donald F. Paine), 36 Tenn. L. Rev. 276 (1969).

40-10-108. Form of bond.

The undertaking entered into pursuant to § 40-10-107 may be in substance as follows:

State of Tennessee,

County of

We, A. B., C. D., and E. F., witnesses against G. H., charged with a public offense, do each bind ourselves to appear at the next term of the (circuit) court of  County, on the second day of the term, to give evidence against G. H., and, in case of failure, to pay the state of Tennessee two hundred fifty dollars ($250).

This  day of  , 20 .

A. B.,

C.D.,

E.F.

Code 1858, § 5068; Shan., § 7027; Code 1932, § 11567; T.C.A. (orig. ed.), § 40-1123.

40-10-109. Increase of bond — Surety.

Whenever the magistrate has good cause to believe that a witness for the prosecution will not appear to testify, the magistrate may require the witness to enter into a similar undertaking in a larger sum and with sufficient security.

Code 1858, § 5069; Shan., § 7028; Code 1932, § 11568; T.C.A. (orig. ed.), § 40-1124.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.16.

Tennessee Jurisprudence, 25 Tenn. Juris., Witnesses, § 3.

40-10-110. Minors as witnesses.

Minors, being material witnesses for the prosecution, may also be required, in the discretion of the magistrate, to procure sureties who will undertake for their appearance to testify, or the magistrate may issue subpoenas and have those minors instantly summoned to appear and testify.

Code 1858, § 5070; Shan., § 7029; Code 1932, § 11569; T.C.A. (orig. ed.), § 40-1125; Acts 1984, ch. 515, § 1.

NOTES TO DECISIONS

1. Ineffective Assistance of Counsel.

In an aggravated rape case, defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for failing to call witnesses to testify that the victim and defendant had a relationship prior to the attack as the victim consistently testified that she did not know defendant; without viewing a photo of defendant, the victim worked with a sketch artist to construct an image of her attacker, which resembled defendant; he confessed to choking and raping the victim; the victim's statement to police and her testimony at the preliminary hearing and trial were congruous with defendant's confession; defendant's fingerprints were found on the victim's kitchen window; and his semen was found in her underwear. Bledsoe v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 276 (Tenn. Crim. App. Apr. 13, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 485 (Tenn. Aug. 18, 2017).

40-10-111. Commitment of witnesses.

Any witness required to enter into an undertaking, with or without security, shall, on failure or refusal, be committed to jail.

Code 1858, § 5071; Shan., § 7030; Code 1932, § 11570; T.C.A. (orig. ed.), § 40-1126.

NOTES TO DECISIONS

1. Inability to Give Bond.

Where a party is unable to give bond for his appearance he must be discharged upon his own personal undertaking to appear, having committed no contempt warranting his imprisonment. Arrowood v. State, 2 Shan. 347 (1877).

40-10-112. Bail of witnesses.

In case of commitment pursuant to § 40-10-111, the magistrate shall state in the commitment the amount of the undertaking and whether security is required. The witness shall be discharged by the sheriff on entering into the undertaking as required.

Code 1858, § 5072; Shan., § 7031; Code 1932, § 11571; T.C.A. (orig. ed.), § 40-1127.

40-10-113. Magistrates acting in association.

Any magistrate to whom information is made, or before whom any defendant is brought, may associate with the magistrate one (1) or more magistrates of the same grade, and the powers and duties in this chapter prescribed may be executed and performed by them.

Code 1858, § 5075; Shan., § 7034; Code 1932, § 11574; T.C.A. (orig. ed.), § 40-1130.

40-10-114. Waiver of preliminary hearing — Objection by state.

The preliminary hearing may not be waived by the defendant if the state makes a timely objection, for good cause shown, to the defendant's request for waiver.

Acts 2015, ch. 329, § 1.

Chapter 11
Bail

Part 1
Admission to Bail

40-11-101. Short title.

Sections 40-11-101 — 40-11-144 shall be known as and may be cited as the “Release from Custody and Bail Reform Act of 1978.”

Acts 1978, ch. 506, § 1; T.C.A., § 40-1201.

Cross-References. Bail after indictment, § 40-13-302.

Bail of persons held for extradition, § 40-9-106.

Bail of persons taken in fresh pursuit by officers from other states, § 40-7-204.

Bail of workhouse prisoners, § 41-2-126.

Bail pending appeal, §§ 40-26-102, 40-26-103, 40-26-104.

Right of bail, Tenn. Const., art. I, § 15.

Taking recognizances on recommitment by supreme court, § 16-3-203.

Undertaking on continuance from term to term, § 40-18-103.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.3.

Law Reviews.

A Noble Ideal Whose Time Has Come (Penny J. White), 18 Mem. St. U.L. Rev. 223 (1989).

An Analysis of the Bail Reform Act of 1984, 53 Tenn. L. Rev. 145 (1985).

Bail Bonds Under the Tennessee Bail Reform Act of 1978 (Judge David D. Creekmore), 21 No. 1, Tenn. B.J. 23 (1985).

40-11-102. Bailable offenses.

Before trial, all defendants shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great. After conviction, defendants are bailable as provided by § 40-11-113, § 40-11-143 or both.

Acts 1978, ch. 506, § 2; T.C.A., § 40-1202.

Cross-References. Admission to bail for motor vehicle violations, § 55-10-203.

Bailable offenses, Tenn. Const., art. I, § 15.

Bail for defendant charged with commission of crime while free on bail, § 40-11-148.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.1, 4.2, 4.5.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 3.

Law Reviews.

The Tennessee Bail System — What's the Best Cure? (Michael D. Brent), 8 Mem. St. U.L. Rev. 121.

NOTES TO DECISIONS

7. Right to Bail.

Conclusion that a police officer violated Metropolitan Nashville Police Department policy was not arbitrary or capricious and was supported by substantial and material evidence because the officer knowingly deprived a bonding agent of his right to conduct lawful business without improper interference from the police; the officer's telephone call to the agent caused him to not bond out an arrestee, and it was the officer's intention to deprive the arrestee of his right to bail. Davis v. Civil Serv. Comm'n of the Metro. Gov't, — S.W.3d —, 2019 Tenn. App. LEXIS 250 (Tenn. Ct. App. May 21, 2019).

Decisions Under Prior Law

1. Identical with Constitution.

The former section merely repeated the language of Tenn. Const., art. I, § 15 dealing with bail. Butt v. State, 131 Tenn. 415, 175 S.W. 529, 1914 Tenn. LEXIS 116 (1915).

2. Effect of Conviction.

Constitutional guaranty of bail is lost after conviction. Butt v. State, 131 Tenn. 415, 175 S.W. 529, 1914 Tenn. LEXIS 116 (1915); State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667, 1965 Tenn. LEXIS 577 (1965).

3. Capital Offenses.

On a hearing in a capital case for application to bail after indictment, the burden of proof is on applicant to show facts warranting allowance of bail. Shaw v. State, 164 Tenn. 192, 47 S.W.2d 92, 1932 Tenn. LEXIS 2 (1932).

On application for bail by defendant who was charged with capital offense but not yet indicted, state was required to carry burden of proof and offer evidence to sustain right of state to retain prisoner in custody. State ex rel. Jefferson v. State, 222 Tenn. 413, 436 S.W.2d 437, 1969 Tenn. LEXIS 449 (1969).

4. Murder.

One convicted of first degree murder and sentenced to life imprisonment where the jury found mitigating circumstances is not entitled to bail as a matter of right pending appeal, Tenn. Const., art. I, § 15 not applying after conviction, especially since the finding of mitigating circumstances may be disregarded on appeal and infliction of death penalty ordered. Butt v. State, 131 Tenn. 415, 175 S.W. 529, 1914 Tenn. LEXIS 116 (1915).

5. Rape.

The former section did not except the crime of rape and the courts are without power to read such an exception into it. State ex rel. Holloway v. Joyner, 173 Tenn. 298, 117 S.W.2d 1, 1937 Tenn. LEXIS 28, 118 A.L.R. 1113 (1938).

6. Habeas Corpus.

Prisoner was not entitled to bail pending appeal from dismissal of petition for writ of habeas corpus attacking validity of conviction. State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667, 1965 Tenn. LEXIS 577 (1965).

The former section was inapplicable to habeas corpus cases since they are civil and not criminal proceedings, but trial court may in its discretion grant bail to petitioner in habeas corpus proceeding where petitioner is discharged and state appeals from action of trial court. Leighton v. Henderson, 219 Tenn. 108, 407 S.W.2d 177, 1966 Tenn. LEXIS 509 (1966).

40-11-103. Methods of release.

  1. Sections 40-11-101 — 40-11-144 shall be supplemental to the laws providing for and regulating professional bail bondsmen, who may continue to secure the bail bonds provided for in §§ 40-11-101 — 40-11-144, but only as provided for in § 40-11-122, and consistently with all other laws and regulations pertaining to those laws.
  2. Nothing in §§ 40-11-101 — 40-11-144 shall prevent the release of a person charged with a traffic violation under the terms and conditions of §§ 40-11-145 and 40-11-146.

Acts 1978, ch. 506, § 3; T.C.A., § 40-1203.

40-11-104. Authority to release defendants.

  1. Any magistrate may release the defendant on the defendant's own recognizance pursuant to § 40-11-115 or § 40-11-116 or admit the defendant to bail pursuant to § 40-11-117 or § 40-11-122 at any time prior to or at the time the defendant is bound over to the grand jury. The trial court may release the defendant on the defendant's own recognizance pursuant to § 40-11-115, admit the defendant to bail under § 40-11-116, § 40-11-117 or § 40-11-122, or alter bail or other conditions of release pursuant to § 40-11-144 at any time prior to conviction or thereafter, except where contrary to law.
  2. When a defendant has been released to appear as directed by the officer setting bail, and such defendant fails to appear as ordered, any new bail set shall be posted only pursuant to § 40-11-118 or § 40-11-122.

Acts 1978, ch. 506, § 4; T.C.A., § 40-1204; Acts 2012, ch. 994, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.7, 4.2.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 5.

Attorney General Opinions. Review of revocation of probationary sentence — Reconsideration of Opinion No. 99-080, OAG 99-199 (9/29/99).

40-11-105. Right to bail — Bail by clerk — Maximum amounts.

    1. When the defendant has been arrested or held to answer for any bailable offense, the defendant is entitled to be admitted to bail by the committing magistrate, by any judge of the circuit or criminal court, or by the clerk of any circuit or criminal court; provided, that if admitted to bail by the clerk of any circuit or criminal court, the defendant has a right to petition the judge of the circuit or criminal court if the defendant feels that the bail set is excessive, and shall be given notice of this fact by the clerk.
    2. The clerk of any circuit or criminal court may only admit the defendant to bail when the judge is not present in the court and the clerk reasonably believes that the judge will not be present within three (3) hours after the defendant has been committed to the county or city jail, following arrest.
  1. Except as provided in subsection (c), in no event may a clerk set the amount of bail in excess of:
    1. One thousand dollars ($1,000) if the defendant is charged with a misdemeanor;
    2. Ten thousand dollars ($10,000) if the defendant is charged with a felony that does not involve a crime committed against a person;
    3. Fifty thousand dollars ($50,000) if the defendant is charged with a felony that involves a crime committed against a person; or
    4. One hundred thousand dollars ($100,000) if the defendant is charged with some form of homicide.
  2. A clerk may set the amount of bail in excess of the listed amounts in subsection (b) if the defendant is deemed a risk of flight pursuant to § 40-11-118.

Acts 1978, ch. 506, § 5; T.C.A., § 40-1205; Acts 2012, ch. 1011, §§ 2, 3.

Cross-References. Bail for defendant charged with commission of crime while free on bail, § 40-11-148.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.6, 4.2, 4.4, 4.6.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 3.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Authority to Take Bail.

Under the former section, where a defendant was held to answer a bailable offense, the committing magistrate, or any judge of the circuit or criminal courts of this state could take the bail, before conviction. Holcomb v. State, 74 Tenn. 668, 1881 Tenn. LEXIS 195 (1881).

2. Form of Bail by Magistrate.

Under the former section, the committing magistrate could take the bail, and inasmuch as the statute was silent as to the form in which the bail could be taken, the justice could take either bond or recognizance. Pugh v. State, 39 Tenn. 227, 1858 Tenn. LEXIS 285 (1858).

3. Status of Recognizance as Record.

When a recognizance taken before the committing magistrate is filed in the proper court of record, it becomes a part of the record in that court, and it is entitled to the verity which, by law, appertains to records. Barkley v. State, 19 Tenn. 93, 1838 Tenn. LEXIS 22 (1838); Pugh v. State, 39 Tenn. 227, 1858 Tenn. LEXIS 285 (1858).

4. Habeas Corpus.

Petitioner was not entitled to bail pending appeal from dismissal of petition for writ of habeas corpus attacking validity of conviction. State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667, 1965 Tenn. LEXIS 577 (1965).

40-11-106. Authority to take bail — Appeal.

  1. If bail has been set, any sheriff, any magistrate or other officer having authority to admit to bail in the county where the defendant is arrested, confined or legally surrendered may take bail in accordance with the provisions of §§ 40-11-101 — 40-11-144 and release the defendant to appear as directed by the officer setting bail. The sheriff or peace officer shall give a numbered receipt to the defendant to mandate an accounting for the bail so taken and within a reasonable time deposit the bail with the clerk of the court having jurisdiction of the offense.
    1. Under this part, it is the responsibility of the sheriff or judicial commissioner to determine the sufficiency of the surety and validity of any bond, and once a sheriff or judicial commissioner has taken bail under this subsection (b), that action shall be presumed to be valid. Once a sheriff or judicial commissioner has taken bail or refused to take bail, the jurisdiction of the court having jurisdiction of the offense shall be limited to the issue of whether the sheriff or judicial commissioner has abused discretion. A surety which meets the requirements of § 40-11-122(1) or (2) shall be deemed sufficient if it is certified by the circuit court clerk of the county where the defendant resides to the sheriff, magistrate, or other appropriate officer in the county where the defendant was arrested, confined or legally surrendered.
    2. However, any defendant, claiming that a sheriff or judicial commissioner has acted arbitrarily or capriciously, may, by motion, file an appeal to the court having jurisdiction of the offense. Upon appeal, it is the court's duty to determine whether the sheriff or judicial commissioner has acted arbitrarily or capriciously.
    3. This subsection (b) shall not be used to prevent a commercial bonding agency from posting bond for any individual when the commercial bondsman has previously been approved and authorized to make bonds and the bondsman has been so authorized by the presiding judge.
  2. Before the sheriff, magistrate or other officer admits to bail and releases a defendant who is arrested for any kidnapping offense involving a hostage or victim, the releasing authority shall make all reasonable and diligent efforts to notify the hostage or victim of the alleged offense that the defendant has been admitted to bail and is being released. If the hostage or victim is under the age of eighteen (18) or otherwise unavailable, the releasing authority shall make all reasonable and diligent efforts to notify the family, if any, of the hostage or victim that the defendant is being released.

Acts 1978, ch. 506, § 6; 1981, ch. 237, § 1; T.C.A., § 40-1206; Acts 1984, ch. 911, § 1; 1988, ch. 648, § 1.

Cross-References. Admission to bail pending appeal, § 40-11-113.

Arrest in another county, § 40-11-147.

Notice to officials of convict's release, § 41-21-224.

Notification to kidnapping hostages or victims, of convict's release on parole or probation, §§ 40-11-113, 40-28-107.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.21.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 3.

40-11-107. Taking bail before commitment.

The committing magistrate or the city court clerk of any incorporated municipality or city or that person's deputies, before whom a defendant is brought for examination on a warrant of arrest, are authorized to take bail, either for the defendant's appearance for examination or for the defendant's appearance at court to answer the charge.

Acts 1978, ch. 506, § 7; T.C.A., § 40-1207.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Unauthorized Taking of Bail.

Where an officer takes bail before the prisoner has been examined or committed, it is a nullity and the sureties are discharged. State v. McCoy, 60 Tenn. 111, 1873 Tenn. LEXIS 422 (1873).

2. Procedure upon Application.

Upon application for bail, the procedure and the examination of witnesses are left to the discretion of the trial court; however, all material evidence offered by either state or accused should be considered. Shaw v. State, 164 Tenn. 192, 47 S.W.2d 92, 1932 Tenn. LEXIS 2 (1932).

40-11-108. Taking bail after commitment.

If the defendant is committed to jail in default of bail, the committing magistrate or sheriff or the city court clerk of any incorporated municipality or city or the person's deputies may take bail at any time thereafter, for defendant's appearance at the court having cognizance of the offense.

Acts 1978, ch. 506, § 8; T.C.A., § 40-1208.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.21.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Sheriff's Right to Take Bail.

Where the sheriff takes bail of a prisoner before he has been examined or committed, such is a nullity and the sureties are discharged. State v. McCoy, 60 Tenn. 111, 1873 Tenn. LEXIS 422 (1873).

40-11-109. Taking bail after indictment.

After indictment, the sheriff, upon executing the capias or writ of arrest, may take bail from the defendant for the defendant's appearance to answer the charge.

Acts 1978, ch. 506, § 9; T.C.A., § 40-1209.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.21.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Limits on Sheriff's Power.

Where the magistrate does not adjudge the offense to be bailable, the sheriff cannot take bail. State v. Horn, 19 Tenn. 473, 1838 Tenn. LEXIS 76 (1838).

A sheriff has no power to take bail for the appearance of prisoners committed for offenses, except such as is given by statute. State v. Horn, 19 Tenn. 473, 1838 Tenn. LEXIS 76 (1838); State v. McCoy, 60 Tenn. 111, 1873 Tenn. LEXIS 422 (1873).

2. Bond to Show Reasons.

The bond must show the reason for taking the bail. State v. Austin, 23 Tenn. 213, 1843 Tenn. LEXIS 56 (1843); State v. Quinby, 37 Tenn. 419, 1858 Tenn. LEXIS 27 (1858).

40-11-110. Bail for material witness.

  1. If it appears by affidavit that the testimony of a person is material in any criminal proceeding and if it is shown that the witness has refused or will refuse to respond to process, the court may require the witness to give bail under § 40-11-117 or § 40-11-122 for appearance as a witness, in an amount fixed by the court.
  2. If the person fails to give bail, the court may commit the person to the custody of the sheriff, pending final disposition of the proceeding in which the testimony is needed, may order the person's release if the person has been detained for an unreasonable length of time, and may modify at any time the requirement as to bail.
  3. If the person does not comply with the conditions of the bail bond, the court having jurisdiction shall enter an order declaring the bail to be forfeited as provided in § 40-11-120 or § 40-11-139.

Acts 1978, ch. 506, § 10; T.C.A., § 40-1210.

Cross-References. Guardianship, title 34.

Infants and guardians, § 16-11-109.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.16.

NOTES TO DECISIONS

1. Arrest and Detention.

Where plaintiff was a material witness to murder, was unable to make bond, and indicated that he was unwilling to testify, it was reasonably unlikely that he would appear at suspect's trial, and there was probable cause to arrest and detain plaintiff under T.C.A. § 40-11-110. White v. Gerbitz, 892 F.2d 457, 1989 U.S. App. LEXIS 19177 (6th Cir. Tenn. 1989).

40-11-111. Bail for persons under disability.

  1. Individuals who are unable to perform activities of daily living as the result of a severe and persistent mental illness, or individuals who have been adjudicated mentally incompetent, or infants, need not personally make the deposit or execute the bail bond as may be required under §§ 40-11-101 — 40-11-144, but the deposit and execution may be made for such individuals by anyone found by the sheriff or clerk taking the bond to be a responsible substitute.
  2. For the purposes of this section, an individual shall be considered to have a severe and persistent mental illness if:
    1. Such individual has a psychiatric diagnosis or symptoms consistent with a psychiatric diagnosis as specified in the latest edition of the American Psychiatric Association Diagnostic and Statistical Manual ; and
    2. Such individual has delusions, hallucinations, extremely disorganized thinking or other significant disruptions of consciousness, memory, and perception that are not attributable solely to the acute effects of alcohol or other drugs; and
    3. Such individual has a documented medical history of the items listed in subdivisions (b)(1) and (2).
  3. For purposes of this section, unless the context otherwise requires:
    1. “Delusions” means fixed, clearly false beliefs; and
    2. “Hallucinations” means clearly erroneous perceptions of reality.

Acts 1978, ch. 506, § 11; T.C.A., § 40-1211; Acts 2010, ch. 937, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.21.

40-11-112. Arrest warrant issued for failure to comply with conditions.

Upon an increase in the amount of bail required or the defendant's failure to comply with any condition of a bail bond or recognizance release, the court having jurisdiction at the time of the increase or failure shall declare a forfeiture and may issue a warrant for the arrest of the defendant.

Acts 1978, ch. 506, § 12; T.C.A., § 40-1212.

Cross-References. Arrest of defendant by bail bondsman, § 40-11-133.

Sheriff assisting bail bondsman in arrest, § 40-11-134.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.45.

40-11-113. Admission to bail pending appeal.

    1. In the cases in which the defendant may be admitted to bail upon appeal, the order admitting the defendant to bail may be made either by the court wherein the judgment was rendered, or the judge of the rendering court, by the court of criminal appeals, or any judge of the court of criminal appeals, or by the supreme court, or any supreme court justice.
    2. In any case in which any person has been admitted to bail following the person's arrest or indictment, the bail bond, security or cash deposit shall continue and be valid and binding pending any trial proceeding and appellate review, and no additional or new bail shall be required unless ordered by the court wherein the judgment of the conviction was rendered, or the judge of the rendering court, or by the court of criminal appeals, or any judge of the court of criminal appeals, or by the supreme court, or any supreme court judge.
    3. Nothing in this section shall prevent any of the rendering courts, the court of criminal appeals or the supreme court or any judge or justice of those courts from reducing or increasing the amount of bail required pending appellate review.
    4. If any person admitted to bail pending appeal is indicted for or convicted of a separate felony offense while released on bail, the bail shall be revoked and the defendant committed immediately.
  1. If a defendant is convicted of first degree murder, a Class A felony or a violation of §§ 39-11-117, 39-12-205, 39-13-304, 39-13-402, 39-13-503, 39-13-504, 39-14-404, 39-15-402, 39-17-107, 39-17-417(b), 39-17-417(c)(1), 39-17-417(i), 39-17-1004(b) or 39-17-1005, the judge shall revoke bail immediately, notwithstanding sentencing hearings, motions for a new trial, or related post-guilt determination hearings.
  2. If the defendant is convicted of any other felony offense, the judge may revoke bail immediately, notwithstanding sentencing hearings, motions for a new trial and related post-guilt determination hearings.
  3. Before a judge admits to bail pending appeal and releases a defendant who is convicted of any kidnapping offense, for which bail is authorized, involving a hostage or victim, the judge shall make all reasonable and diligent efforts to notify the hostage or victim of the offense that the defendant has been admitted to bail pending appeal and is being released. If the hostage or victim is under eighteen (18) years of age or is otherwise unavailable, the judge shall make all reasonable and diligent efforts to so notify the family, if any, of the hostage or victim.

Acts 1978, ch. 506, § 13; 1979, ch. 224, § 1; 1979, ch. 318, § 16; 1979, ch. 397, § 1; 1981, ch. 449, § 2; 1982, ch. 567, §§ 1, 2; T.C.A., § 40-1213; Acts 1988, ch. 648, § 2; 1991, ch. 347, §§ 1, 3; 1995, ch. 498, § 1.

Compiler's Notes. Acts 1995, ch. 498, § 2 provided that the amendment by that act applies to all applicable convictions occurring on or after July 1, 1995.

Cross-References. Appeal as of right, T.R.A.P. 3.

Authority to take bail, § 40-11-106.

Penalty for Class A felony, § 40-35-111.

Notice to officials of convict's release, § 41-21-224.

Notification to kidnapping hostages or victims, of convict's release on parole or probation, §§ 40-11-106, 40-28-107.

Parole, § 40-28-505.

Revocation of bail, § 40-35-116.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.1, 4.41, 31.51, 33.104, 33.105.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 4.

NOTES TO DECISIONS

1. Constitutionality.

There is no U.S. or Tennessee constitutional guarantee of bail after conviction and the law prohibiting a judge granting or continuing bail pending appeal from a conviction under § 39-6-417(a)(1) (repealed) does not violate due process or equal protection of law under U.S. Const., amends. 5 and 14, or Tenn. Const., art. I, § 8. Swain v. State, 527 S.W.2d 119, 1975 Tenn. LEXIS 642 (Tenn. 1975), appeal dismissed, Swain v. Tennessee, 423 U.S. 1041, 96 S. Ct. 764, 46 L. Ed. 2d 631, 1976 U.S. LEXIS 926 (1976).

2. Subsequent Indictment.

Request for appeal bond was moot issue where defendant was indicted for other offenses subsequent to his conviction in the instant case and therefore his bond would have been revoked as a matter of law, and also because with the affirmation of the convictions in the instant case any bonds that defendant could have been out on would have been immediately revoked. State v. Wright, 836 S.W.2d 130, 1992 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. 1992), appeal denied, 1992 Tenn. LEXIS 378 (Tenn. May 26, 1992).

40-11-114. Contents of written undertaking.

  1. Bail, when not given in open court, is given by a written undertaking, containing the conditions of release, the agreement of the defendant to appear in the court having jurisdiction of the offense as directed by the court and/or an amount to be paid for nonappearance, signed by the defendant, and if made under § 40-11-122(2), signed also by court-approved and sufficient surety or sureties. The written undertaking must be approved by the officer taking it.
  2. An electronically transmitted facsimile copy of a written undertaking shall have the same legal effect as the original written undertaking. An electronically transmitted facsimile copy of a written undertaking signed by the defendant shall have the same legal effect as the written undertaking signed by the defendant.

Acts 1978, ch. 506, § 14; T.C.A., § 40-1214; Acts 1999, ch. 52, § 1.

Textbooks. Pritchard on Wills and Administration of Estates (5th ed., Phillips and Robinson), § 858.

Tennessee Criminal Practice and Procedure (Raybin), § 4.12.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 6.

Law Reviews.

The Tennessee Bail System — What's the Best Cure? (Michael D. Brent), 8 Mem. St. U.L. Rev. 121.

40-11-115. Release on recognizance or unsecured bond — Factors considered.

  1. Any person charged with a bailable offense may, before a magistrate authorized to admit the person to bail, be ordered released pending trial on the person's personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the magistrate.
  2. In determining whether or not a person shall be released as provided in this section and that a release will reasonably assure the appearance of the person as required, the magistrate shall take into account:
    1. The defendant's length of residence in the community;
    2. The defendant's employment status and history, and financial condition;
    3. The defendant's family ties and relationships;
    4. The defendant's reputation, character and mental condition;
    5. The defendant's prior criminal record, including prior releases on recognizance or bail;
    6. The identity of responsible members of the community who will vouch for defendant's reliability;
    7. The nature of the offense and the apparent probability of conviction and the likely sentence, insofar as these factors are relevant to the risk of nonappearance; and
    8. Any other factors indicating the defendant's ties to the community or bearing on the risk of willful failure to appear.

Acts 1978, ch. 506, § 15; T.C.A., § 40-1215.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.1, 4.6, 4.22, 4.24.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 6, 10.

Attorney General Opinions. Authority of judicial commissioners and judges regarding the setting and alteration of bail.  OAG 12-82, 2012 Tenn. AG LEXIS 83 (8/23/12).

40-11-116. Conditions on release.

  1. If a defendant does not qualify for a release upon recognizance under § 40-11-115, then the magistrate shall impose the least onerous conditions reasonably likely to assure the defendant's appearance in court.
  2. If conditions on release are found necessary, the magistrate may impose one (1) or more of the following conditions:
    1. Release the defendant into the care of some qualified person or organization responsible for supervising the defendant and assisting the defendant in appearing in court. This supervisor shall maintain close contact with the defendant, assist the defendant in making arrangements to appear in court, and, where appropriate, accompany the defendant to court. The supervisor shall not be required to be financially responsible for the defendant, nor to forfeit money in the event the defendant fails to appear in court. The department of correction and its officers are not to be considered an appropriate qualified organization or person under this section;
    2. Impose reasonable restrictions on the activities, movements, associations and residences of the defendant; and/or
    3. Impose any other reasonable restriction designed to assure the defendant's appearance, including, but not limited to, the deposit of bail pursuant to § 40-11-117.

Acts 1978, ch. 506, § 16; T.C.A., § 40-1216; Acts 2001, ch. 443, §§ 1, 2; 2012, ch. 727, § 10.

Compiler's Notes. For the preamble to the act concerning transfers of certain functions relating to probation and parole services and the community correction grant program from the board of probation and parole to the department of correction, please refer to Acts 2012, ch. 727.

Acts 2012, ch. 727, § 63 provided that the implementation of the act, which amended subdivision (b)(1), shall be fully accomplished on or before January 1, 2013.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.1, 4.6, 4.22, 4.26.

Attorney General Opinions. Authority of judicial commissioners and judges regarding the setting and alteration of bail.  OAG 12-82, 2012 Tenn. AG LEXIS 83 (8/23/12).

40-11-117. Bail security required.

Absent a showing that conditions on a release on recognizance will reasonably assure the appearance of the defendant as required, the magistrate shall, in lieu of the conditions of release set out in § 40-11-115 or § 40-11-116, require bail to be given.

Acts 1978, ch. 506, § 17; T.C.A., § 40-1217.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.1.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 3.

40-11-118. Execution and deposit — Bail set no higher than necessary — Factors considered — Bonds and sureties.

  1. Any defendant for whom bail has been set may execute the bail bond and deposit with the clerk of the court before which the proceeding is pending a sum of money in cash equal to the amount of the bail. Upon depositing this sum, the defendant shall be released from custody subject to the conditions of the bail bond. Bail shall be set as low as the court determines is necessary to reasonably assure the appearance of the defendant as required.
  2. In determining the amount of bail necessary to reasonably assure the appearance of the defendant while at the same time protecting the safety of the public, the magistrate shall consider the following:
    1. The defendant's length of residence in the community;
    2. The defendant's employment status and history and financial condition;
    3. The defendant's family ties and relationships;
    4. The defendant's reputation, character and mental condition;
    5. The defendant's prior criminal record, record of appearance at court proceedings, record of flight to avoid prosecution or failure to appear at court proceedings;
    6. The nature of the offense and the apparent probability of conviction and the likely sentence;
    7. The defendant's prior criminal record and the likelihood that because of that record the defendant will pose a risk of danger to the community;
    8. The identity of responsible members of the community who will vouch for the defendant's reliability; however, no member of the community may vouch for more than two (2) defendants at any time while charges are still pending or a forfeiture is outstanding; and
    9. Any other factors indicating the defendant's ties to the community or bearing on the risk of the defendant's willful failure to appear.
    1. Whenever a court's judgment includes the requirement that the defendant pay a fine or cost, the court may require that the payment of the fine or cost be secured by surety bond or other appropriate undertaking if such defendant has a history of past due fines and costs. A parent, guardian or other responsible party may be permitted to act as surety in order to guarantee the payment of the fine or cost.
    2. Notwithstanding any other provision of law to the contrary, unless the surety executes a bond or agreement which specifically makes the surety liable for the fine, cost, or restitution, no surety shall be held liable for the fine, cost or restitution without the surety's consent.
    1. When the court is determining the amount and conditions of bail to be imposed upon a defendant, if the defendant is charged with a violation of § 55-10-401, and has one (1) or more prior convictions for the offense of driving under the influence of an intoxicant under § 55-10-401, vehicular assault under § 39-13-106, aggravated vehicular assault under § 39-13-115, vehicular homicide under § 39-13-213(a)(2), aggravated vehicular homicide under § 39-13-218, or a prior conviction in another state that qualifies under § 55-10-405(b), the court shall consider the use of special conditions for the defendant, including, but not limited to, the conditions set out in subdivision (d)(2).
    2. The special conditions the court shall consider pursuant to subdivision (d)(1) are:
      1. The use of ignition interlock devices;
      2. The use of transdermal monitoring devices or other alternative alcohol monitoring devices. However, if the court orders the use of a monitoring device on or after July 1, 2016, and determines the defendant is indigent, the court shall order the portion of the costs of the device that the defendant is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419;
      3. The use of electronic monitoring with random alcohol or drug testing; or
      4. Pretrial residency in an in-patient alcohol or drug rehabilitation center.
    3. As used in this subsection (d), “court” includes any person authorized by § 40-11-106 to take bail.
  3. After an inquiry pursuant to § 40-7-123 into the citizenship status of a defendant who is arrested for causing a traffic accident resulting in either the death or serious bodily injury, as defined in § 55-50-502, of another while driving without a valid driver license and evidence of financial responsibility as required by § 55-12-139, if it is determined that the defendant is not lawfully present in the United States, when determining the amount of bail, the defendant may be deemed a risk of flight.
    1. If the judge or magistrate determines that a person charged with vehicular assault under § 39-13-106, vehicular homicide under § 39-13-213(a)(2), or aggravated vehicular homicide under § 39-13-218 on or after July 1, 2015, has a prior alcohol-related conviction, the use of a transdermal monitoring device shall be a condition of the person's bail agreement.
    2. All expenses associated with a person being subject to a transdermal monitoring device as a condition of bail shall be paid by that person. If the person believes there are legitimate medical reasons why the person is unable to be subject to the order, those reasons may be presented at the person's first appearance before a general sessions court judge or judge of a court of record. After hearing from the person subject to monitoring, the judge may waive, modify, or affirm an order requiring that person to be subject to transdermal monitoring.
    3. The offender shall choose an entity from a list approved by the court to provide, administer, and monitor the transdermal device ordered as a condition of bail. However, any entity placed on the approved list must have the ability to monitor the person's device on a daily basis and report any violation to the court having jurisdiction over the person's case by no later than the business day next following the violation. The person on bail shall remain subject to transdermal monitoring for the duration of the time the person is released on bail, unless the judge or magistrate specifically provides otherwise.
    4. If the report from the transdermal monitoring entity to the judge indicates that the person being monitored violated the conditions of release, the judge may issue a capias for the person's arrest for violation of bond conditions.
    5. As used in this subsection (f):
      1. “Alcohol-related conviction” means the person has been convicted prior to the instant conviction of a violation of § 39-13-213(a)(2), § 39-13-106, § 39-13-218, or § 55-10-401; and
      2. “Transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (1/2) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device.
    1. If a person is required as a special bond condition to submit to monitoring pursuant to subdivisions (d)(2)(A) - (C), subsection (f), § 40-11-150, or § 40-11-152, it is a Class B misdemeanor:
      1. For that person to knowingly tamper with, remove, or vandalize the monitoring device; or
      2. For any person to knowingly aid, abet, or assist a person in tampering with, removing, or vandalizing a monitoring device.
    2. If an entity monitoring the device becomes aware that there has been an attempt to either tamper with, disable, remove, or otherwise make the device ineffective, or if the bonding agent becomes aware the person has violated any bond condition ordered by the court, then the entity monitoring the device shall promptly give notice of the violation to the court with jurisdiction over the person and the surety of the person's bail bond.
    3. The court shall take such action as the case may require, including, but not limited to, the revocation of bail. Additionally, the violation also constitutes a grounds for surrender under § 40-11-132.

Acts 1978, ch. 506, § 18; 1982, ch. 620, § 1; T.C.A., § 40-1218; Acts 1992, ch. 946, § 1; 1996, ch. 851, § 1; 2010, ch. 867, § 1; 2011, ch. 487, §§ 1, 2; 2012, ch. 1011, § 1; 2015, ch. 490, §§ 1, 2; 2016, ch. 876, § 4; 2016, ch. 993, § 10; 2018, ch. 1046, § 3.

Compiler's Notes. Acts 2015, ch. 490, § 3  provided that the act, which added subsections (f) and (g), shall apply to all applicable bond orders issued on or after July 1, 2015.

Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to  offenses committed on or after July 1, 2018.

Amendments. The 2018 amendment substituted “electronic monitoring indigency” for “DUI monitoring” preceding “fund” in (d)(2)(B).

Effective Dates. Acts 2018, ch. 1046, § 12. July 1, 2018.

Cross-References. Bail for defendant charged with commission of crime while free on bail, § 40-11-148.

Excessive bail, Tenn. Const., art. I, § 16.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.1, 4.6, 4.15, 4.27.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 3, 7.

Attorney General Opinions. Proposed amendment to bail statutes granting judges authority to require a defendant to post a cash deposit bond, as opposed to other types of bonds, for all bailable offenses involving a worthless check, a child custody or support violation, or a probation violation deemed unconstitutional, OAG 03-054 (4/30/03).

A court may not offer defendant the option of executing a bail bond secured by paying ten percent of the bail amount in cash, OAG 04-008 (1/21/04).

A court cannot require a defendant to secure a bail bond with a cash deposit rather than with real estate or sureties, but the court can apply the cash deposit to any fines or court costs rendered against the defendant, OAG 04-008 (1/21/04).

Authority of judicial commissioners and judges regarding the setting and alteration of bail.  OAG 12-82, 2012 Tenn. AG LEXIS 83 (8/23/12).

NOTES TO DECISIONS

1. Security for Payment of Fines.

Where defendant had “a history of past due fines and costs” within the meaning of T.C.A. § 40-11-118, the trial court did not abuse its discretion in requiring him to guarantee the payment of fines with sufficient securities. State v. Hart, 898 S.W.2d 748, 1994 Tenn. Crim. App. LEXIS 774 (Tenn. Crim. App. 1994).

A cash bond deposited by defendant's father to ensure defendant's appearance in court could not be attached to cover fines and costs incurred by defendant in connection with the prosecution. State v. Clements, 925 S.W.2d 224, 1996 Tenn. LEXIS 423 (Tenn. 1996).

Trial court erred in denying pretrial bail after defendant garnered additional charges while on bail because holding her without bail pending trial violated the constitutional guarantee to pretrial bail and the trial court had to address the statutory factors as to additional conditions or bail that might be required to reasonably assure the appearance of defendant while at the same time protecting the safety of the public. State v. Burgins, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1089 (Tenn. Crim. App. Dec. 3, 2014), rev'd, 464 S.W.3d 298, 2015 Tenn. LEXIS 285 (Tenn. Apr. 7, 2015).

2. Consideration of Factors.

Trial court erred in raising defendant's bond after he filed a motion to reduce bond because, while the trial court properly considered the statutory factors, the judge's actions—setting an excessively high bond ($10,000,000) and then instructing defendant that his bond would be revoked if he made it— amounted to a complete denial of pretrial bond in violation of the state constitution. Pretrial bond was to ensure a defendant's appearance in court—NOT to ensure that punishment was meted out to a person who was not yet convicted, and, while the trial judge disagreed with defendant's constitutional right to be bailable, he was nevertheless duty bound to follow the law. State v. Kizzie, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1077 (Tenn. Crim. App. Dec. 3, 2015).

3. Child Support Enforcement.

In order to comport with the Equal Protection guarantees of both the United States and Tennessee Constitutions in a child support enforcement action, the court must follow the applicable bail statutes set forth in the Release from Custody and Bail Reform Act of 1978 unless the bail statute or statutes conflict with T.C.A. § 36-5-101(f)(2), in which case § 36-5-101(f)(2) controls; this mandate includes T.C.A. §§ 40-11-122 and 40-11-118. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

40-11-119. Return of deposit to defendant.

If the conditions of the bail bond have been performed and the defendant has been discharged from all obligations in the cause, the clerk of the court shall return to the defendant, unless the court orders otherwise, the entire sum which had been deposited.

Acts 1978, ch. 506, § 19; T.C.A., § 40-1219.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.27, 4.45.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 10.

40-11-120. Forfeiture of defendant's bail deposit.

If the defendant released upon recognizance under § 40-11-115 or posting bail bond under § 40-11-118 does not comply with the conditions of the bail bond, the court having jurisdiction shall enter an order declaring the bail to be forfeited. Notice of the order or forfeiture shall be mailed forthwith by the clerk to the defendant at the defendant's last known address. If the defendant does not appear and surrender to the court having jurisdiction within thirty (30) days from the date of the forfeiture or, within that period, satisfy the court that appearance and surrender by the defendant are impossible and not the defendant's fault, the court shall enter judgment for the state against the defendant for the amount of the bail and costs of the court proceedings. The deposit made in accordance with § 40-11-118 shall be applied to payment of the judgment and costs. Any balance of the judgment and costs may be enforced and collected in the same manner as a judgment entered in a civil action.

Acts 1978, ch. 506, § 20; T.C.A., § 40-1220.

Cross-References. Forfeiture of bail, title 40, ch. 11, part 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.45.

Attorney General Opinions. The “costs of the court proceedings” in T.C.A. § 40-11-120 include the costs of all the proceedings in the case against a defendant and are not limited to the costs of the bail forfeiture proceeding alone. OAG 17-38, 2017 Tenn. AG LEXIS 38 (9/1/2017).

40-11-121. Judgment for fine and costs — Deposit applied to payment.

If a judgment for fine and court costs, or either, is entered in the prosecution of a cause in which a deposit had been made by defendant, the deposit shall be applied to the payment of the judgment.

Acts 1978, ch. 506, § 21; T.C.A., § 40-1221.

40-11-122. Bail bond secured by real estate or sureties.

In lieu of the bail deposit provided for in § 40-11-118, any defendant for whom bail has been set may execute a bail bond which may be secured as provided in this section. The bail bond may be secured by:

  1. Real estate situated in this state with nonexempt unencumbered equity owned by the defendant or the defendant's surety worth one and one-half (1½) times the amount of bail set. If the bail bond is secured by real estate, the defendant or the defendant's surety shall execute a deed of trust conveying the real estate in trust to the clerk who shall immediately file the deed of trust in the office of the register of the county in which the real estate is situated. The costs of preparation of the deed of trust and recordation shall be paid by the defendant;
  2. A written undertaking signed by the defendant and at least two (2) sufficient sureties, and approved by the magistrate or officer. Sureties under this section shall not be professional bondsmen or attorneys; or
  3. A solvent corporate surety or sureties or a professional bail bondsman as approved, qualified or regulated by §§ 40-11-101 — 40-11-144 and part 3 of this chapter. No bond shall be approved unless the surety on the bond appears to be qualified.

Acts 1978, ch. 506, § 22; T.C.A., § 40-1222.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.28, 4.31, 4.45.

Attorney General Opinions. Property bond must be rejected if it is for real estate valued at less than one and one-half times the amount of bail set, OAG 03-050 (4/22/03).

Constitutionality of proposed amendment to bail statutes granting judges authority to require a defendant to post a cash deposit bond, as opposed to other types of bonds, for all bailable offenses involving a worthless check, a child custody or support violation, or a probation violation, OAG 03-054 (4/30/03).

A court may not offer defendant the option of executing a bail bond secured by paying ten percent of the bail amount in cash, OAG 04-008 (1/21/04).

40-11-123. Sufficiency of sureties — Evidence.

  1. Each of the sureties shall be worth the amount expressed in the undertaking, subject to the execution; but the court, magistrate or officer in taking bail may allow more than two (2) sureties to justify severally in amounts less than that expressed in the undertaking, if the whole qualification is equivalent to two (2) sufficient sureties.
  2. The district attorney general, or the court, magistrate or officer, may examine the sureties on oath touching their sufficiency, in any manner that the district attorney general, or the court, magistrate or officer may deem proper. The court or magistrate may also receive other testimony, either for or against the sufficiency of sureties.

Acts 1978, ch. 506, §§ 23, 24; T.C.A., § 40-1223.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.31.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 4, 10.

NOTES TO DECISIONS

Decisions Under Prior Law

1. More Than Two Sureties.

Where the trial court ruled that an appeal bond would be in order and set it at $50,000, more than two sureties may execute the bond in accordance with the statute, absent any objection. Hull v. State, 543 S.W.2d 611, 1976 Tenn. Crim. App. LEXIS 319 (Tenn. Crim. App. 1976).

40-11-124. List of approved and qualified professional bondsmen — Certification required — Rules concerning qualifications.

  1. The clerk, sheriff, municipal courts and other inferior courts shall have available a list of professional bondsmen or other sureties approved and qualified as solvent by the courts of record with criminal jurisdiction within the county. These approved lists shall be provided by the judges of those courts. No undertaking shall be accepted unless the professional bondsman or other surety is so certified as approved.
  2. In counties having a population of seven hundred seventy thousand (770,000) or more, according to the 1980 federal census or any subsequent federal census, the rules concerning the qualifications of bail bond companies as established by the criminal court of record shall be applicable in any inferior court in the county. The clerk of any such inferior court shall have the duty and the responsibility to enforce the rules.

Acts 1978, ch. 506, § 37; T.C.A., § 40-1224; Acts 1987, ch. 423, § 2.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Professional bondsmen, title 40, ch. 11, part 3.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 3, 6.

NOTES TO DECISIONS

1. Subject Matter Jurisdiction.

Chancery court erred in exercising subject matter jurisdiction over a bail bond company's action for injunctive relief and declaratory judgment declaring proposed Local Rules of Practice and Procedure for Bail Bond Companies unenforceable, unconstitutional, and in violation of the law because it did not have subject matter jurisdiction to entertain an action for declaratory or injunctive relief regarding the validity of local rules of the criminal court. Memphis Bonding Co. v. Crim. Court of Tenn. 30th Dist., 490 S.W.3d 458, 2015 Tenn. App. LEXIS 930 (Tenn. Ct. App. Nov. 25, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 247 (Tenn. Mar. 22, 2016).

Because a bail bond company's underlying claim for injunctive relief regarding Local Rules of Practice and Procedure for Bail Bond Companies could not be brought in chancery court, the chancery court could not exercise subject matter jurisdiction over the declaratory judgment aspect of the case either; the courts should not assume that subject matter jurisdiction existed based on the fact that the issue was not addressed. Memphis Bonding Co. v. Crim. Court of Tenn. 30th Dist., 490 S.W.3d 458, 2015 Tenn. App. LEXIS 930 (Tenn. Ct. App. Nov. 25, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 247 (Tenn. Mar. 22, 2016).

To allow the chancery court to review the validity or enjoin the enforcement of the local rules of the criminal court would interfere with the inherent power of the criminal court to administer its affairs and impose reasonable regulations regarding the making of bonds; the statutes and rules do not authorize chancery court review of the local rules of the criminal court. Memphis Bonding Co. v. Crim. Court of Tenn. 30th Dist., 490 S.W.3d 458, 2015 Tenn. App. LEXIS 930 (Tenn. Ct. App. Nov. 25, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 247 (Tenn. Mar. 22, 2016).

40-11-125. Approval of bondsmen withheld, withdrawn or suspended.

  1. In addition to the requirements of part 3 of this chapter regulating professional bondsmen, approval of a professional bondsman or other surety may be withheld, withdrawn or suspended by any court if, after investigation, it appears that a bondsman:
    1. Has been guilty of violating any of the laws of this state relating to bail bonds;
    2. Has a final judgment of forfeiture entered against the bondsman which remains unsatisfied;
    3. Is guilty of professional misconduct as described in § 40-11-126; or
    4. If applying for approval as a professional bondsman, has been convicted in any state of the United States of two (2) or more misdemeanors which are equivalent to Tennessee Class A or Class B misdemeanors; provided, however, that the misdemeanor convictions shall have occurred within five (5) years of the date the application for approval is filed.
  2. Any court withholding, withdrawing or suspending a bondsman or other surety under this section shall notify the bondsman in writing of the action taken, accompanied by a copy of the charges resulting in the court's action. If, within twenty (20) days after notice, the bail bondsman or surety files a written answer denying the charges or setting forth extenuating circumstances, the court shall call a hearing within a reasonable time for the purpose of taking testimony and evidence on any issues of fact made by the charges and answer. The court shall give notice to the bail bondsman, or to the insurer represented by the bondsman, of the time and place of the hearing. The parties shall have the right to produce witnesses, and to appear personally with or without representation by counsel. If, upon a hearing, the court determines that the bail bondsman is guilty as alleged in the charges, the court shall thereupon withhold, withdraw or suspend the bondsman from the approved list, or suspend the bondsman for a definite period of time to be fixed in the order of suspension.
  3. The clerk of the court and the sheriff of the county shall be notified of the action of the court and the offending bondsman stricken from the approved list.
  4. Any applicant for approval whose application has been denied, withheld, suspended or revoked shall have the right of appeal to the next highest court having criminal jurisdiction, and the appeal shall be heard de novo.

Acts 1978, ch. 506, § 38; T.C.A., § 40-1225; Acts 2013, ch. 169, § 1.

Compiler's Note. For the Preamble to the act concerning the requirement that bail bondsmen be law abiding citizens, please refer to Acts 2013, ch. 169.

Cross-References. Penalties for Class A and B misdemeanors, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §  6.

NOTES TO DECISIONS

1. Suspension.

Evidence failed to show that the superior court clerk and a bonding company's owner commingled funds so that the clerk received an indirect benefit from the company's writing of bail bonds. Thus, the trial court erred by suspending the company's privileges to write bail bonds pursuant to T.C.A. § 40-11-125. In re AAAA Bonding Co., LLC, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. May 5, 2016).

Suspending a bondsman's protected right to write bail bonds did not violate due process because (1) the bondsman was sufficiently apprised of the reasons, as the bondsman's motion to set the suspension aside correctly stated the reason, which the court's conversation with counsel confirmed, and (2) the bondsman had a sufficient opportunity to be heard as between the suspension and the bondsman's hearing and between the hearing and an order denying the motion to set the suspension aside, the bondsman did not remedy the known reason for the suspension, so these delays were not unreasonable. In re A-River City Bail Bond, Inc., — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. Dec. 12, 2016).

In an appeal in which three bail bonding companies that were owned by the same proprietor challenged a trial court's decision to suspend their bonding privileges for six months after law enforcement determined that a bondsman for one of the companies was trading bonds for sex, the court of criminal appeals found the trial court did not cite any legal authority to support its decision to require one of the companies to revise its employee manual. The trial court acted arbitrarily and capriciously in imposing the requirement only on the companies owned by the proprietor. In re Cumberland Bail Bonding, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. July 24, 2018).

In an appeal in which three bail bonding companies challenged a trial court's decision to suspend their bonding privileges for six months after law enforcement determined that a bondsman for one of the companies was trading bonds for sex, the court of criminal appeals concluded that the suspension of the company that employed the bondsman, based on an alleged flaw in its employee manual, was unwarranted, as T.C.A. § 40-11-125 does not authorize suspension for flaws in an employee manual. In re Cumberland Bail Bonding, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 554 (Tenn. Crim. App. July 24, 2018).

Second part of Tenn. 31st Jud. Dist. R. 26.05(B) is arbitrary, capricious, and illegal, and because the first part of the rule requires that the bonding company give notice to the defendant of an upcoming court appearance, the second part places an additional burden on the company as it would have presumably notified the defendant of his court appearance and it is not apparent why the company's presence should also be required. Suspension of the company for violation of the local rule was reversed. In re Cumberland Bail Bonding, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Mar. 7, 2019).

40-11-126. “Unprofessional conduct” defined for bondsmen and surety agents.

In addition to the criminal sanctions elsewhere provided by law, the following is deemed unprofessional conduct and no bondsman or surety agent shall:

  1. Suggest or advise the employment of or name for employment any particular attorney to represent the bondsman's principal;
  2. Pay a fee or rebate or give or promise anything of value to any clerk of court, jailer, police officer, peace officer, committing magistrate or any other person who has power to arrest or hold in custody, or to any public official or public employee in order to secure a settlement, compromise, remission or reduction of the amount of any bail bond or the forfeiture of the bail bond;
  3. Pay a fee or rebate or give anything of value to an attorney in bail bond matters except in defense of any action on a bond;
  4. Pay a fee or rebate or give or promise anything of value to the principal or anyone in the principal's behalf;
  5. Participate in the capacity of an attorney at a trial or hearing of one on whose bond the person is a surety;
  6. Solicit business directly or indirectly, by active or passive means, or engage in any other conduct which may reasonably be construed as intended for the purpose of solicitation of business in any place where prisoners are confined or in any place immediately surrounding where prisoners are confined;
  7. Surrender a principal or ask any court to be relieved from a bail bond arbitrarily or without good cause;
  8. Accept anything of value from a principal except the premium; provided, that the bondsman shall be permitted to accept collateral security or other indemnity from the principal which shall be returned upon final termination of liability on the bond. The collateral security or other indemnity required by the bondsman must be reasonable in relation to the amount of the bond. When a bail bondsman accepts collateral, the bondsman shall give a written receipt for the collateral, and this receipt shall give in detail a full description of the collateral received and the terms of redemption; or
  9. Engage in the business of a professional bondsman or surety without maintaining a permanent business office, business telephone and appropriate signage indicating that the office is a professional bail bond business.

Acts 1978, ch. 506, § 39; T.C.A., § 40-1226; Acts 2001, ch. 281, § 1; 2008, ch. 1030, §§ 1, 2; 2009, ch. 239, § 1.

Attorney General Opinions. Limited restrictions on bondsmen's activities at jail, OAG 98-0147 (8/12/98).

40-11-127. Charges preferred against bondsman.

Upon motion, any district attorney general may prefer charges to have a bail bondsman stricken from the approved list pursuant to § 40-11-125 with the same provisions for notice, answer and hearing before the court, and the same right of appeal.

Acts 1978, ch. 506, § 40; T.C.A., § 40-1227.

40-11-128. Certain persons disqualified as bondsmen.

The following persons or classes shall not be bail bondsmen or agents of bail bondsmen or surety companies and shall not directly or indirectly receive any benefits from the execution of any bail bond: jailers, attorneys, police officers, convicted felons, committing magistrates, municipal or magistrate court judges, clerks or deputy clerks, sheriffs, deputy sheriffs and constables, and any person having the power to arrest or having anything to do with the control of federal, state, county or municipal prisoners.

Acts 1978, ch. 506, § 41; T.C.A., § 40-1228.

Attorney General Opinions. Section not in conflict with § 40-11-313, OAG 98-0176 (8/28/98) (Opinion decided under prior law).

Deputy sheriffs are prohibited from serving as bail bondsmen in any district or county in Tennessee, OAG 06-092 (5/16/06).

Section 40-11-128 prohibits the spouse of a deputy sheriff from serving as a bail bondsperson if the spouses commingle funds. OAG 14-80, 2014 Tenn. AG LEXIS 83 (9/4/14).

NOTES TO DECISIONS

1. Restoration of Rights.

Trial court properly denied a petitioner's application to qualify as a bondsman's agent and revoked a bondsman's authorization to write bonds because T.C.A. § 40-11-128 clearly prohibited convicted felons from serving as bond agents and failed to provide an exception for convicted felons whose citizenship rights had been restored. State v. Gray (In re Cox), 389 S.W.3d 794, 2012 Tenn. Crim. App. LEXIS 635 (Tenn. Crim. App. Aug. 20, 2012), appeal denied, Cox v. Gray, — S.W.3d —, 2012 Tenn. LEXIS 836 (Tenn. Nov. 21, 2012).

Evidence failed to show that the superior court clerk and a bonding company's owner commingled funds so that the clerk received an indirect benefit from the company's writing of bail bonds. Thus, the trial court erred by suspending the company's privileges to write bail bonds, and its judgment was vacated. In re AAAA Bonding Co., LLC, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. May 5, 2016).

40-11-129. Sureties not discharged by irregularities.

No sureties are discharged by reason of:

  1. The want of any of the qualifications required in this part;
  2. There not being the requisite number of sureties;
  3. Any other agreement than is expressed in the undertaking;
  4. Infancy, lunacy or any other incapacity of any of the other parties thereto; or
  5. The defendant not having joined in the same.

Acts 1978, ch. 506, § 25; T.C.A., § 40-1229.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.46.

40-11-130. Duration of bond or recognizance.

    1. If a defendant in a criminal case executes a bond or recognizance before any court or other person authorized by law to take a bond or recognizance for the defendant's personal appearance before a court to answer a criminal charge and there has not been a disposition pursuant to § 40-11-138(b), the bond or recognizance shall be valid and binding upon the defendant and the defendant's sureties, until the time allowed by law for the defendant to appeal a finding of guilt to the court of criminal appeals. If the defendant timely appeals, the defendant shall be required to make a new bond to the court of criminal appeals, unless there has not been a disposition pursuant to § 40-11-138(b) and the trial judge, after examination of the original bond, sets out in a written order that the original bond is sufficient. The court shall use its discretion in determining whether the bond at issue should be changed. No presumption is otherwise intended to be raised in this section. If the time for appealing to the court of criminal appeals expires and the defendant has not filed an appeal, the bondsman, if there has not been a disposition pursuant to § 40-11-138(b), may be required to surrender the defendant to the court for service of the sentence.
    2. If the defendant files a timely appeal and the trial court judge orders that a new bond be made, the new bond or recognizance shall be made to the court of criminal appeals and shall not terminate until the final state court to which the defendant may appeal has rendered a decision on the appeal. Upon the conclusion of the appellate process, the bondsman shall be required to surrender the defendant.
    1. If the defendant is placed on pretrial, post-plea or judicial diversion, community correction, fined or if the defendant's sentence is suspended and probation granted, any such action shall constitute a disposition pursuant to § 40-11-138(b), the bond or recognizance is terminated, and the bondsman or other surety shall be released from the bondsman's or surety's obligations.
    2. If the court orders that the defendant is required to make a new bond or recognizance while on any of the programs set out in subdivision (b)(1), the new bond or recognizance shall be made to the court granting the placement. The new bond or recognizance shall not terminate until the defendant has completed the period of court-ordered supervision or until the defendant's diversion, community correction or probation is revoked. If the defendant's diversion, community correction or probation is revoked, the bondsman may be required to surrender the defendant.
    1. A defendant is not required to make any bond or recognizance other than that which is required by subsection (a) or (b), unless ordered to do so by the appropriate court, because the:
      1. Bond is insufficient in amount;
      2. Defendant's sureties are insolvent;
      3. Bail is forfeited; or
      4. Court finds other good and sufficient cause for doing so.
    2. If the defendant is required to make another bond or recognizance for any reason set out in subdivision (c)(1), the sureties on the original bond may surrender the defendant and be released on the bond, as is provided by law.

Acts 1978, ch. 506, § 26; T.C.A., § 40-1230; Acts 1991, ch. 347, § 2; 1997, ch. 504, § 1; 2005, ch. 378, § 1; 2007, ch. 239, §§ 1-3.

Compiler's Notes. Acts 1997, ch. 504, which rewrote this section, provided in § 4 that the services performed by the clerks of court under that act with respect to any new bond on appeal, during pretrial diversion, community correction or during probation shall not be included under § 8-21-401(a)(7)(L) (now § 8-21-409(a)(7)(L)), and shall be compensated as otherwise provided by law.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.41, 9.42.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 10, 15.

NOTES TO DECISIONS

4. Construction.

Bail is set on the criminal offense for which a defendant is charged and not criminal offenses for which the defendant may be charged in the future as a result of a criminal episode; the language of both T.C.A. §§ 40-11-130(a)(1) and 40-11-138(b) focus upon the “charge” against the defendant upon which the bond is based, and when read together, the statutes require that a surety remain obligated on a bond set for a criminal charge until that charge is disposed under T.C.A. § 40-11-138(b). State v. Aldaba-Arriaga, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Dec. 14, 2018).

Trial court properly entered a final judgment of forfeiture against a bail bond surety for the total amount of the bond and declined to grant its motion to alter or amend because the charges for driving on a revoked license and DUI remained the same and were not resolved by a statutory disposition that would have relieved the surety of liability on the bond, the surety was not without a remedy, and could have surrendered the defendant at any time after the indictment was issued and before he failed to appear. In re Rader Bonding Co., — S.W.3d —, 2019 Tenn. LEXIS 529 (Tenn. Dec. 23, 2019).

Decisions Under Prior Law

1. Transfer to Another Court.

The action of the juvenile judge in transferring murder case to the criminal court and remanding the accused to the custody of the sheriff did not terminate the bail bond contract between accused and the bonding company, and the bonding company was required to furnish the bond stated in the contract when accused was allowed release on an increased bond six months later or to give accused a partial refund. Carver v. Rader, 531 S.W.2d 114, 1975 Tenn. App. LEXIS 168 (Tenn. Ct. App. 1975).

2. Failure to Appear for Sentence.

A bail bond is a continuing obligation until sentence, and where accused failed to appear for sentence after conviction, the condition of the bond was broken and his surety became liable. Ewing v. United States, 240 F. 241, 1917 U.S. App. LEXIS 2346 (6th Cir. 1917).

3. Failure to Appear for Probation Proceedings.

Reading former T.C.A. § 40-11-130 and T.C.A. § 40-11-138(b) together, and applying the rules of statutory construction, the Tennessee supreme court held that the specific language of § 40-11-138(b) will prevail; thus, a surety is released from his obligation on a bond upon disposition of the case, including sentencing. State v. Davis (In re Driver), 173 S.W.3d 411, 2005 Tenn. LEXIS 787 (Tenn. 2005).

40-11-131. Defects in bond no defense.

Where a bail bond or recognizance is executed by the accused, it shall be valid and binding on the accused and the accused's sureties for the accused's personal appearance before the court as prescribed by law or, if not payable or conditioned as prescribed by law for the appearance of the accused before the court from term to term of the court, it shall be held as if the bond or recognizance had expressly so stipulated and conditioned on its face, and no defect in the bond or recognizance shall avail the defendant and the accused's sureties upon default to appear.

Acts 1978, ch. 506, § 27; T.C.A., § 40-1231.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.46.

40-11-132. Exoneration of bail bondsman or surety by surrender of defendant.

At any time, the bail bondsman or surety may surrender the defendant in their exoneration or the defendant may personally surrender to the officer. Surrender by a bail bondsman or surety shall be for good cause including, but not limited to, the following:

  1. The defendant has violated the contractual provisions between the defendant and the bondsman;
  2. The bondsman or surety has good cause to believe the defendant will not appear as ordered by the court having jurisdiction;
  3. A forfeit, conditional or final, has been rendered against the defendant;
  4. The defendant has failed to appear in court either as ordered by the court or as commanded by any legal process; or
  5. The defendant has been arrested while on bond.

Acts 1978, ch. 506, § 28; T.C.A., § 40-1232; Acts 2001, ch. 426, §§ 3, 4.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.46.

Attorney General Opinions. Sheriff's duty to receive inmate surrendered by bondman, OAG 98-0174 (8/28/98).

NOTES TO DECISIONS

1. Surety Denied Exoneration.

Surety on bail bonds was properly denied exoneration where defendant had been arrested in Louisiana but was released when an extradition request did not issue from Tennessee, and the surety had failed to notify the Tennessee trial judge in the manner required by § 40-11-201. De Graw v. State, 608 S.W.2d 155, 1980 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. 1980).

Regardless of whether a capias should have been issued upon the return of the indictment, the absence of a capias did not affect appellant's remedy to surrender defendant and be exonerated from the bond in accordance with the statute; because appellant failed to establish an extreme case justifying exoneration, the trial court did not abuse its discretion in denying appellant's request. State v. Aldaba-Arriaga, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Dec. 14, 2018).

2. Remedies.

Trial court properly entered a final judgment of forfeiture against a bail bond surety for the total amount of the bond and declined to grant its motion to alter or amend because the charges for driving on a revoked license and DUI remained the same and were not resolved by a statutory disposition that would have relieved the surety of liability on the bond, the surety was not without a remedy, and could have surrendered the defendant at any time after the indictment was issued and before he failed to appear. In re Rader Bonding Co., — S.W.3d —, 2019 Tenn. LEXIS 529 (Tenn. Dec. 23, 2019).

Decisions Under Prior Law

1. Power After Forfeiture.

A bail retains the power to arrest and surrender a principal until payment of a forfeiture even though forfeiture has been ordered either conditionally or finally. Poteete v. Olive, 527 S.W.2d 84, 1975 Tenn. LEXIS 636 (Tenn. 1975).

40-11-133. Arrest of defendant by bail bondsman or other authorized person.

  1. For the purposes of §§ 40-11-132, 40-11-203, and 40-11-204, the bail bondsman or surety may arrest the defendant on a certified copy of the undertaking, at any place either in or out of the state, or may, by written authority endorsed on the certified copy, authorize another person to make the arrest. In the event that circumstances prevent the obtaining of a certified copy of the undertaking or capias from the clerk's office at the time of the arrest or surrender, a duplicate copy of the same shall suffice until such time that a certified copy can be obtained from the clerk's office.
  2. After the payment of the forfeiture, the bail bondsman or surety may arrest the defendant on a certified copy of the capias, or may, by a written authority endorsed on the certified copy, authorize another person to make the arrest.
  3. Any capias issued pursuant to a forfeit, whether the forfeit is conditional or final, shall remain in full force and effect until the defendant is apprehended and returned to the criminal justice system, and a disposition is entered in the defendant's case.
  4. Any approved bail bondsman in good standing is authorized to return the defendant to the jurisdiction for which the bail bond is obligated for the defendant's appearance; provided, the bail bondsman is liable for the expenses of returning the defendant and the defendant is located within this state.

Acts 1978, ch. 506, § 31; T.C.A., § 40-1233; Acts 1987, ch. 423, § 4; 1991, ch. 347, § 4; 2001, ch. 426, § 1; 2003, ch. 303, § 1; 2010, ch. 799, § 1; 2011, ch. 367, § 2.

Cross-References. Arrest warrant issued for failure to comply with conditions, § 40-11-112.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§  8, 10.

Attorney General Opinions. Sheriff's duty to receive inmate surrendered by bondsman, OAG 98-0174 (8/28/98).

A bounty hunter can legally break and enter into a residence to make an arrest if it is the suspect's residence only, OAG 01-20 (2/7/01).

T.C.A. § 40-11-133 applies to bounty hunters arresting a suspect wanted by another state, OAG 01-20 (2/7/01).

Decisions Under Prior Law

1. Legality of Arrest.

For arrest of principal by bail or his agents to be legal, the bond or a certified copy thereof must be exhibited to the principal at the time of the arrest, and, if the arrest is made by agents of the bail, the bond or copy thereof must contain a proper endorsement to them by the bail authorizing them to make the arrest. Poteete v. Olive, 527 S.W.2d 84, 1975 Tenn. LEXIS 636 (Tenn. 1975).

40-11-134. Sheriff assisting bail bondsman or surety in arrest.

The bail bondsman or surety is also entitled to the aid of the sheriff of any county in this state in making the arrest, within the bounds of the sheriff's county, by producing a certified copy of the bail bond, and, in person or by agent, accompanying the officer to receive the person arrested.

Acts 1978, ch. 506, § 32; T.C.A., § 40-1234.

Cross-References. Arrest warrant issued for failure to comply with conditions, § 40-11-112.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 8.

40-11-135. Return of bail bond after arrest.

The sheriff making the arrest under § 40-11-134 shall return the copy of the bail bond, with an endorsement of the sheriff's action, in the same manner as the sheriff is required to return a capias.

Acts 1978, ch. 506, § 33; T.C.A., § 40-1235.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 10.

40-11-136. Surrender to sheriff.

The surrender shall be made to the sheriff of the county in which the defendant is bound to answer for the offense, whether by change of venue or otherwise, and the sheriff is not bound to accept the surrender unless made at the place of holding the court in that county, or at the county jail.

Acts 1978, ch. 506, § 30; T.C.A., § 40-1236; 2006, ch. 745, § 1.

Attorney General Opinions. Sheriff's duty to receive inmate surrendered by bondsman, OAG 98-0174 (8/28/98).

NOTES TO DECISIONS

1. Surety Denied Exoneration.

Surety on bail bonds was properly denied exoneration where defendant had been arrested in Louisiana but was released when an extradition request did not issue from Tennessee, and the surety had failed to notify the Tennessee trial judge in the manner required by § 40-11-201. De Graw v. State, 608 S.W.2d 155, 1980 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. 1980).

40-11-137. Duty of bail bondsman or surety upon surrendering defendant — Hearing.

  1. Upon surrendering the defendant, the bail bondsman or surety shall, as soon as is reasonably practicable, go before any court having jurisdiction authorized to admit to bail, and notify the officer of the surrender.
    1. Any court having jurisdiction so notified shall have the defendant brought before it as soon as practicable, and within seventy-two (72) hours, and determine whether or not the surrender was for good cause.
      1. If the court having jurisdiction finds that the surrender was arbitrary or not for good cause, it may order the defendant rereleased upon the same undertaking or impose other conditions as provided by law.
      2. If the surrender is found to be for good cause, the court having jurisdiction shall approve the surrender by endorsement upon the bail bond or by other writing, and it shall be the duty of the surrendering bail bondsman to deliver the written approval or copy of the approval to the sheriff.
    2. This subsection (b) shall not apply where a surrender is based on a conditional or final judgment of forfeiture issued by the court having jurisdiction over the defendant.
  2. The court shall fix the amount of premium to be refunded, if any.

Acts 1978, ch. 506, § 29; T.C.A., § 40-1237; Acts 2012, ch. 685, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.46.

40-11-138. Release of bail bondsmen or sureties from obligations.

  1. If the conditions of the bail bond have been performed and the defendant has been discharged from the defendant's obligations in the cause, the clerk of the court shall return to the bondsman the deposit of any cash. If the bail has been secured by real estate, the clerk of the court shall immediately prepare and forward to the register a written release of the deed of trust on the real estate. The costs of the release shall be paid by the defendant.
    1. A bail bondsman or surety shall be released from an obligation under a bail bond if the charge against the surety's principal is disposed of by acquittal, agreement with the state, whether diversion or otherwise, or retirement.
      1. If the charge is disposed of by conviction or a plea of guilty, the bond shall remain in effect until the court renders the defendant's sentence.
      2. After conviction or a plea of guilty, and before the court renders the defendant's sentence, the bond shall not be forfeited against a surety, shall not be included in the calculation of a professional bondsman's capacity or solvency, or otherwise negatively impact the surety.
  2. If after the bond has been active and in effect for three (3) years and the state has failed to seek an original indictment before a grand jury against the defendant covered by the bond, the bond shall not be forfeited against the surety and shall not be included in the calculation of a professional bondsman's capacity, solvency, or otherwise negatively impact the surety involved.

Acts 1978, ch. 506, § 34; T.C.A., § 40-1238; Acts 1988, ch. 877, § 1; 1989, ch. 109, § 1; 2013, ch. 388, § 2; 2014, ch. 922, § 1; 2017, ch. 262, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.45.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 10.

NOTES TO DECISIONS

1. Construction With Other Sections.

Reading former T.C.A. § 40-11-130 and T.C.A. § 40-11-138(b) together, and applying the rules of statutory construction, the Tennessee supreme court held that the specific language of § 40-11-138(b) will prevail; thus, a surety is released from his obligation on a bond upon disposition of the case, including sentencing. State v. Davis (In re Driver), 173 S.W.3d 411, 2005 Tenn. LEXIS 787 (Tenn. 2005).

Bail is set on the criminal offense for which a defendant is charged and not criminal offenses for which the defendant may be charged in the future as a result of a criminal episode; the language of both T.C.A. §§ 40-11-130(a)(1) and 40-11-138(b) focus upon the “charge” against the defendant upon which the bond is based, and when read together, the statutes require that a surety remain obligated on a bond set for a criminal charge until that charge is disposed under T.C.A. § 40-11-138(b). State v. Aldaba-Arriaga, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Dec. 14, 2018).

Trial court properly entered a final judgment of forfeiture against a bail bond surety for the total amount of the bond and declined to grant its motion to alter or amend because the charges for driving on a revoked license and DUI remained the same and were not resolved by a statutory disposition that would have relieved the surety of liability on the bond, the surety was not without a remedy, and could have surrendered the defendant at any time after the indictment was issued and before he failed to appear. In re Rader Bonding Co., — S.W.3d —, 2019 Tenn. LEXIS 529 (Tenn. Dec. 23, 2019).

2. Release of Obligation.

Trial court erred in issuing a judgment of final forfeiture because a surety's obligation to secure defendant's appearance was discharged upon the dismissal of the first indictment, the second indictment was not a superseding indictment where it was issued more than four weeks after the trial court dismissed the first indictment, and although the surety stated an incorrect dismissal date of the first indictment in its motion to the trial court, the theory for relief was the same theory that the surety asserted on appeal. In re Jenkins Bonding Co., — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 27, 2016).

Requiring appellant to remain obligated for defendant's appearance for a driving under the influence (DUI) charge under the bonding agreement when the State increased the charge to a felony offense resulted in a unilateral alteration of the agreement; as there was no statutory authority providing for such, once the State increased defendant's charge of DUI second offense to DUI fourth offense, appellant was discharged from its obligations as surety as it related to the $7,500 bond for the DUI second offense charge. State v. Aldaba-Arriaga, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Dec. 14, 2018).

General sessions court did not dismiss the charges against defendant but bound the cases over to the grand jury; thus, the general sessions court's decision did not result in a disposition of the charges that would have relieved appellant of liability. State v. Aldaba-Arriaga, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Dec. 14, 2018).

State did not abandon defendant's charges in the general sessions court but based the counts in the indictment for driving under the influence and driving on a revoked license upon defendant's charges in the general sessions court; thus, the return of the indictment by the grand jury did not constitute the beginning of new criminal proceedings but was a continuation of the proceedings that initiated in the general sessions court. State v. Aldaba-Arriaga, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Dec. 14, 2018).

40-11-139. Forfeiture of bail security — Notice to defendant and sureties.

  1. If the defendant whose release is secured under § 40-11-122 does not comply with the conditions of the bail bond, the court having jurisdiction shall enter an order declaring the bail to be forfeited. Notice of the order of forfeiture shall be immediately sent by regular mail by the clerk of the court to the defendant at the defendant's last known address. The defendant's surety will be served with scire facias upon the forfeiture entered and a capias shall be issued for the defendant. When the defendant, who failed to appear pursuant to conditions of a bail bond, is arrested on a capias, the surety on the defendant's forfeited bond is released.
  2. After the expiration of one hundred eighty (180) days from the date surety is served with scire facias or scire facias is returned to the clerk unserved or undelivered, the court may enter judgment for the state against the defendant and the defendant's sureties for the amount of the bail and costs of the proceedings.
  3. No execution shall issue upon a final forfeit, nor shall proceedings be taken for its enforcement until the expiration of thirty (30) days after its entry.

Acts 1978, ch. 506, § 35; 1979, ch. 160, § 1; T.C.A., § 40-1239; Acts 1997, ch. 504, § 2; 2011, ch. 367, § 1; 2013, ch. 388, § 1; 2016, ch. 963, § 1; 2019, ch. 105, § 1.

Amendments. The 2019 amendment substituted  “sent by regular mail” for “sent by certified mail, restricted delivery, return receipt requested,” in the second sentence of (a).

Effective Dates. Acts 2019, ch. 105, § 2. April 11,  2019.

Cross-References. Forfeiture of bail, title 40, ch. 11, part 2.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.45.

NOTES TO DECISIONS

1. Exoneration.

A surety may seek exoneration at the final hearing and after the final hearing until a final judgment against it is actually paid. Indemnity Ins. Co. v. Blackwell, 653 S.W.2d 262, 1983 Tenn. App. LEXIS 546 (Tenn. Ct. App. 1983).

Trial court, which found a bonding company was at fault for knowing that the defendant was in Australia but waiting until after the final forfeiture to apprehend him, did not abuse its discretion by granting only partial exoneration from a final forfeiture of a $200,000 bond. The record did not preponderate against the findings of the trial court, which discredited the bonding company's claim that it did not attempt to obtain the defendant sooner based upon law enforcement's request. In re Am. Bonding Co., — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. June 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 682 (Tenn. Sept. 23, 2016).

2. Grace Period.

Additional 30 days is not provided after a final forfeiture is entered to surrender defendant before a final forfeiture can be executed; therefore, relief was not warranted simply because defendant surrendered to law enforcement after the final forfeiture, but before payment of such. The time period between the final forfeiture and payment of costs was already addressed by a statute, which left it to the sound discretion of the trial court whether the bail bondsman or surety was relieved of liability of bail. Danny Blankenship Bonding Co. v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 75 (Tenn. Crim. App. Feb. 3, 2016).

40-11-140. Execution on judgment.

    1. If judgment is entered in favor of the state on any bail bond, the district attorney general shall have execution issued on the judgment and delivered immediately to the sheriff to be executed by levy on the cash deposited with the clerk of the court or on the real estate described in the deed of trust.
    2. The cash shall be used to satisfy the judgment and costs.
    3. The real estate shall be sold in the same manner as in execution sales in civil actions and the proceeds of the sale shall be used to satisfy the judgment, all court costs and prior encumbrances, if any.
    4. The balance shall be returned to the grantor of the deed of trust.
  1. The real estate so sold may be redeemed in the same manner as real estate may be redeemed after judicial or execution sales in civil actions.
  2. A bond forfeiture shall be collected within the earlier of either five (5) years from the date the defendant failed to appear or the date of last activity in the case, after which time collection from the surety shall be forever barred.

Acts 1978, ch. 506, § 36; T.C.A., § 40-1240; Acts 2004, ch. 753, § 1; 2015, ch. 517, § 2.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 15.

NOTES TO DECISIONS

1. Construction.

T.C.A. § 40-11-140 does not mandate that forfeiture judgments on cash bonds for which a bondsman has undertaken a surety obligation must be satisfied first and only from the general funds that have been deposited by the bondsman for the purpose of being allowed to make bonds, generally, in a particular court. In re Hitt, 910 S.W.2d 900, 1995 Tenn. Crim. App. LEXIS 706 (Tenn. Crim. App. 1995).

2. Court Authority Over Forfeitures.

Criminal court could refuse to grant a bail bondsman's petition to pay certain forfeiture judgments from his cash deposit based on its authority to take reasonable steps to insure that assets were available to cover his potential forfeiture liability. In re Hitt, 910 S.W.2d 900, 1995 Tenn. Crim. App. LEXIS 706 (Tenn. Crim. App. 1995).

40-11-141. Release during trial — Revocation.

  1. A defendant released before trial shall continue on release during trial or release pending trial under the same terms and conditions as were previously imposed, unless the court determines pursuant to § 40-11-137 or § 40-11-144 that other terms and conditions or termination of release are necessary to assure the defendant's presence during trial, or to assure that the defendant's conduct will not obstruct the orderly and expeditious progress of the trial.
  2. If after the defendant is released upon personal recognizance, an unsecured personal appearance bond, or any other bond approved by the court, the defendant violates a condition of release, is charged with an offense committed during the defendant's release, or engages in conduct which results in the obstruction of the orderly and expeditious progress of the trial or other proceedings, then the court may revoke and terminate the defendant's bond and order the defendant held without bail pending trial or without release during trial.

Acts 1978, ch. 506, § 42; T.C.A., § 40-1241; Acts 2011, ch. 57, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.41.

NOTES TO DECISIONS

1. Constitutional Right to Bail.

Trial court erred in denying pretrial bail after defendant garnered additional charges while on bail because holding her without bail pending trial violated the constitutional guarantee to pretrial bail and the trial court had to address the statutory factors as to additional conditions or bail that might be required to reasonably assure the appearance of defendant while at the same time protecting the safety of the public. State v. Burgins, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1089 (Tenn. Crim. App. Dec. 3, 2014), rev'd, 464 S.W.3d 298, 2015 Tenn. LEXIS 285 (Tenn. Apr. 7, 2015).

2. Revocation of Bail.

When defendant engaged in criminal conduct while released on bond, the Tennessee trial court was required to conduct a bail revocation hearing to determine whether defendant forfeited the constitutional right to pretrial bail in compliance with the procedure established to meet the constitutional due process requirements. State v. Burgins, 464 S.W.3d 298, 2015 Tenn. LEXIS 285 (Tenn. Apr. 7, 2015).

Trial court correctly revoked defendant's bail based upon the need to protect public safety after finding that defendant threatened others, including members of the district attorney's office, inquired about purchasing guns from a pawn shop, and was described as being vulgar and angry. State v. Mason, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 965 (Tenn. Crim. App. Jan. 6, 2016).

40-11-142. Due diligence to determine person’s criminal history.

  1. After an officer arrests a person for one (1) of the offenses listed in this subsection (a), but prior to the determination of bail for the arrest offense by the judge or magistrate, the arresting officer or the officer's agency shall exercise due diligence in determining the existence of prior arrests for, and violations of, § 39-13-106, § 39-13-115, § 39-13-213(a)(2), § 39-13-218, or § 55-10-401.
  2. Using due diligence to determine a person's criminal history means the officer makes use of all available databases, including the Tennessee bureau of investigation interstate identification index (III), the Tennessee criminal history database, driver license history, relevant information related to those prior convictions provided pursuant to § 40-6-203, and other official records regarding the person's prior criminal and arrest history to which the officer or officer's agency has access.

Acts 2016, ch. 1075, § 1.

Code Commission Notes.

Acts 2016, ch. 1075, § 1 enacted a new section § 40-11-153, but the section has been redesignated as § 40-11-142 by authority of the Code Commission.

Compiler's Notes. Former § 40-11-142 (Acts 1978, ch. 506, § 43; T.C.A., § 40-1242), concerning release pending sentence and notice of appeal, was repealed by Acts 1997, ch. 504, § 3, effective July 1, 1997.

NOTES TO DECISIONS

1. Construction.

Statute reduces the risk of a recurrence of a situation in which the defendant is initially charged with and a bond is set on a driving under the influence (DUI) but the State later increases the charge to a felony offense upon learning of the extent of the defendant's prior DUI convictions. State v. Aldaba-Arriaga, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 904 (Tenn. Crim. App. Dec. 14, 2018).

40-11-143. Change in bail or conditions of release.

A motion for a change in bail or other conditions of release shall be by written motion, served upon opposing counsel or upon the defendant personally if the defendant is not represented by counsel, within a time reasonable under the circumstances before the hearing on the motion. In granting or denying a motion for a change in bail or other conditions of release, the court shall set forth in writing the reasons for its action.

Acts 1978, ch. 506, § 44; T.C.A., § 40-1243.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.7, 4.10.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 3-5-4.

40-11-144. Review of release decision.

  1. The actions by a trial court from which an appeal lies to the supreme court or court of criminal appeals in granting, denying, setting or altering conditions of the defendant's release shall be reviewable in the manner provided in the Tennessee Rules of Appellate Procedure.
  2. If the action to be reviewed is that of a court from which an appeal lies to a court inferior to the supreme court or court of criminal appeals, review shall be sought in the next higher court upon writ of certiorari.

Acts 1978, ch. 506, § 45; 1981, ch. 449, § 2; T.C.A., § 40-1244.

Cross-References. Release in criminal cases, T.R.A.P. 8.

Attorney General Opinions. Authority of judicial commissioners and judges regarding the setting and alteration of bail.  OAG 12-82, 2012 Tenn. AG LEXIS 83 (8/23/12).

40-11-145. “Guaranteed arrest or bail bond certificate” defined.

As used in this section and § 40-11-146, “guaranteed arrest or bail bond certificate” means a printed card or other certificate issued by an association to any of its members, which is signed by the member and contains a printed statement that the association and the surety company are both licensed to do business in this state and that the guaranteed arrest or bail bond certificate is issued pursuant to the terms of this section and § 40-11-146, and:

  1. The bond guarantees the appearance of the person whose signature appears on the card or certificate; and
  2. That the surety company will, in the event of the failure of the person to appear in court at the time set for appearance, pay any fine or forfeiture imposed upon the person in an amount not to exceed one thousand dollars ($1,000).

Acts 1967, ch. 292, § 1; T.C.A., §§ 40-1241, 40-1245; Acts 1984, ch. 620, § 1; 1992, ch. 688, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.35.

40-11-146. Guaranteed arrest or bail bond certificate in lieu of cash bail.

A guaranteed arrest or bail bond certificate presented by the person whose signature appears thereon shall be accepted in lieu of cash bail in an amount not to exceed five thousand dollars ($5,000) as an arrest or bail bond to guarantee the appearance of the person in any court in this state, at the time required by the court, when the person is arrested for violation of any traffic law of the state or traffic ordinance of any municipality therein relating to the operation of a motor vehicle. The guaranteed arrest or bail bond certificate shall be subject to all of the limitations appearing on its face; but, when accepted, shall be subject to the same forfeiture and enforcement provision as a bail bond or cash bond. However, the violation must have been committed prior to the expiration date shown on the guaranteed arrest or bail bond certificate.

Acts 1967, ch. 292, § 2; T.C.A., §§ 40-1242, 40-1246; Acts 1984, ch. 620, § 2; 1992, ch. 688, § 2; 1995, ch. 270, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 4.35.

40-11-147. Admission to bail after arrest in one county upon a warrant issued in another county.

A defendant arrested in one county on a warrant issued in another county for the commission of an offense for which the maximum punishment is imprisonment for ten (10) years or less is entitled to be admitted to bail in the county of arrest by the same officials and in the same manner as if arrested in the county issuing the warrant, subject to the following provisions:

  1. The appropriate clerk or magistrate shall fix the amount of bail to be required and shall set the amount forth on the face of the warrant; and
  2. The sheriff of the county in which the arrest is made, or the sheriff's deputy, shall transmit the undertaking of bail to the sheriff of the county from which the warrant issued, who shall return it to the court as provided in § 40-11-106.

Acts 1978, ch. 866, § 1; T.C.A., § 40-1247.

Compiler's Notes. This section may be affected by Tenn. R. Crim. P. 4.

Cross-References. Bail for defendant charged with commission of crime while free on bail, § 40-11-148.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 3.3.

40-11-148. Bail for defendant charged with commission of crime while free on bail.

  1. When a defendant has been admitted to and released on bail for a criminal offense, whether prior to or during trial or pending appeal, and the defendant is charged with the commission of one (1) or more bailable offenses while released on bail, the judge shall set the defendant's bail on each new offense in an amount not less than twice that which is customarily set for the offense charged.
    1. When the court is determining the amount and conditions of bail to be imposed upon a defendant who is charged with driving under the influence of an intoxicant under § 55-10-401, vehicular assault under § 39-13-106, aggravated vehicular assault under § 39-13-115, vehicular homicide under § 39-13-213(a)(2), or aggravated vehicular homicide under § 39-13-218, the court shall consider the use of special conditions for such defendant, including, but not limited to, the conditions set out in subdivision (b)(2), if the offense for which bail is being set was committed while the defendant was released on bail for a prior charge of violating any offense listed in this subdivision (b)(1).
    2. The special conditions the court shall consider pursuant to subdivision (b)(1) are:
      1. The use of an ignition interlock device;
      2. The use of a transdermal monitoring device or other alternative alcohol monitoring devices. However, if the court orders the use of a monitoring device on or after July 1, 2016, and the court determines the defendant to be indigent, the court shall order that the portion of the costs of the device that the defendant is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419;
      3. The use of electronic monitoring with random alcohol or drug testing; or
      4. Pretrial residency in an in-patient alcohol or drug rehabilitation center.
    3. As used in this subsection (b), “court” includes any person authorized by § 40-11-106 to take bail.

Acts 1981, ch. 351, § 1; T.C.A., § 40-1248; Acts 2010, ch. 867, § 2; 2011, ch. 487, § 3; 2016, ch. 876, § 5; 2016, ch. 993, § 11; 2018, ch. 1046, § 3.

Compiler's Notes. Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to  offenses committed on or after July 1, 2018.

Amendments. The 2018 amendment substituted “electronic monitoring indigency” for “DUI monitoring” preceding “fund” in (b)(2)(B).

Effective Dates. Acts 2018, ch. 1046, § 12. July 1, 2018.

Cross-References. Bail to be set no higher than necessary, Tenn. Const., art I, § 16, § 40-11-118.

Bailable offenses, Tenn. Const., art. I, § 15, § 40-11-102.

Right to bail, maximum amounts, § 40-11-105.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.9, 33.104.

40-11-149. Attorney not permitted to sign bond in criminal case.

  1. It is an offense for an attorney practicing in any of the courts of this state to sign any bond, or enter into any recognizance, as surety for the appearance of any person, other than a member of the attorney's immediate family, in any criminal case pending against the person in any of the courts in this state.
  2. A violation of subsection (a) is a Class C misdemeanor with no incarceration permitted.

Acts 1989, ch. 591, § 2.

Sentencing Commission Comments.

This section allows an attorney to sign on the bond of a person in the attorney's immediate family.

Compiler's Notes. This section is the successor to former § 39-6-1201.

Cross-References. Liability of professional societies, title 62, ch. 50, part 1.

Penalty for Class C misdemeanor, § 40-35-111.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Application.

Former statute did not apply to judgments for fines and costs, but only to bonds and recognizances for the appearance of defendants for trial in pending criminal cases, and did not prohibit attorneys from becoming sureties for such judgments for fines and costs. Halfacre v. State, 112 Tenn. 609, 79 S.W. 132, 1903 Tenn. LEXIS 130 (1903).

40-11-150. Determination of risk to victim prior to release — Conditional release — Discharge of conditions — Notification to law enforcement.

  1. In addition to the factors set out in § 40-11-118, in making a decision concerning the amount of bail required for the release of a defendant who is arrested for the offense of child abuse, child neglect, or child endangerment, as defined in § 39-15-401, the offense of aggravated child abuse, aggravated child neglect, or aggravated child endangerment, as defined in § 39-15-402, the offense of stalking, aggravated stalking or especially aggravated stalking, as defined in § 39-17-315, any criminal offense defined in title 39, chapter 13, in which the alleged victim of the offense is a victim as defined in § 36-3-601(5), (10) or (11), or is in violation of an order of protection as authorized by title 36, chapter 3, part 6, the magistrate shall review the facts of the arrest and detention of the defendant and determine whether the defendant is:
    1. A threat to the alleged victim;
    2. A threat to public safety; and
    3. Reasonably likely to appear in court.
  2. Before releasing a person arrested for or charged with an offense specified in subsection (a), or a violation of an order of protection, the magistrate shall make findings on the record, if possible, concerning the determination made in accordance with subsection (a), and shall impose one (1) or more conditions of release or bail on the defendant to protect the alleged victim of any such offense and to ensure the appearance of the defendant at a subsequent court proceeding. The conditions may include:
    1. An order enjoining the defendant from threatening to commit or committing specified offenses against the alleged victim;
    2. An order prohibiting the defendant from harassing, annoying, telephoning, contacting or otherwise communicating with the alleged victim, either directly or indirectly;
    3. An order directing the defendant to vacate or stay away from the home of the alleged victim and to stay away from any other location where the victim is likely to be;
    4. An order prohibiting the defendant from using or possessing a firearm or other weapon specified by the magistrate;
    5. An order prohibiting the defendant from possession or consumption of alcohol, controlled substances or controlled substance analogues;
    6. An order requiring the defendant to carry or wear a global positioning monitoring system device and, if able, pay the costs associated with operating that device and electronic receptor device provided to the victim, pursuant to § 40-11-152; and
    7. Any other order required to protect the safety of the alleged victim and to ensure the appearance of the defendant in court.
  3. Concurrent with the imposition of one (1) or more conditions of release, the magistrate shall:
    1. Issue a written order for conditional release containing the conditions of the release on a form prepared by the administrative office of the courts, in consultation with the Tennessee task force against domestic violence, and distributed to judges and magistrates by the administrative office of the courts;
    2. Immediately distribute a copy of the order to the law enforcement agency having custody of the defendant, which agency shall file and maintain the order in the same manner as is done for orders of protection; and
    3. Provide the law enforcement agency with any available information concerning the location of the victim in a manner that protects the safety of the victim.
  4. The law enforcement agency having custody of the defendant shall provide a copy of the conditions to the defendant upon the defendant's release. Failure to provide the defendant with a copy of the conditions of release does not invalidate the conditions if the defendant has notice of such conditions.
  5. If conditions of release are imposed without a hearing, the defendant may request a prompt hearing before the court having jurisdiction of the offense for which the defendant was arrested or is charged to review the conditions. Upon such a request, the court shall hold a prompt hearing to review the conditions.
  6. When a defendant who is arrested for or charged with an offense specified in subsection (a) or with a violation of an order of protection is released from custody, the law enforcement agency having custody of the defendant shall:
    1. Use all reasonable means to immediately notify the victim of the alleged offense of the release and of the address and telephone number of the nearest source of assistance to victims of domestic violence, including, but not limited to, shelters, counseling centers or other appropriate community resources; and
    2. Send the victim at the victim's last known address a copy of any conditions of release. If the victim is present at the time the conditions are imposed, a copy of the conditions may be given to the victim at that time; provided, that failure to furnish the victim a copy of any conditions of release shall not constitute negligence per se by the law enforcement agency.
  7. Release of a defendant who is arrested for or charged with a crime specified in subsection (a) or with a violation of an order of protection shall not be delayed because of the requirements of subsection (f).
    1. Any offender arrested for the offense of stalking, aggravated stalking, or especially aggravated stalking, as defined in § 39-17-315, or any criminal offense defined in title 39, chapter 13, in which the alleged victim is a victim as defined in § 36-3-601, shall not be released within twelve (12) hours of the time of arrest. The magistrate or other official duly authorized to release the offender may, however, release the offender in less than twelve (12) hours if the official finds that the offender is not a threat to the alleged victim.
    2. The findings shall be reduced to writing. The written findings must be attached to the warrant and shall be preserved as a permanent part of the record. The arresting officer shall make official note of the time of the arrest in order to establish the beginning of the twelve-hour period required by this subsection (h).
    3. If the offender is released prior to the conclusion of the twelve-hour period, the official shall make all reasonable efforts to directly contact the victim and inform the victim that the person charged with the offense will be released prior to the conclusion of the twelve-hour period mandated in subdivision (h)(1).
    4. If an order of protection or restraining order has been issued against an offender arrested for an offense listed in subdivision (h)(1), but the offender has not been served with the order prior to incarceration, the offender shall be served whenever possible with the order prior to the offender's release from incarceration. If an order has not been served on the offender at the conclusion of the offender's twelve-hour holding period, the offender may be released, but the order shall be served as soon as possible after the release. Service remains valid on an offender if it is made after the offender is released from incarceration rather than while incarcerated for the twelve-hour hold period.
    1. A person who violates a condition of release imposed pursuant to this section shall be subject to immediate arrest with or without a warrant as provided in § 40-7-103(b). If the violation of the condition of release also constitutes the offense of violation of a protective order as prohibited by § 39-13-113, the person shall be charged with the offense, and the bail of the person violating the condition of release may be revoked by the court having jurisdiction of the offense.
    2. If the violation of the condition or release does not also constitute a violation of § 39-13-113, the release condition violation shall be punished as contempt of the court imposing the conditions, and the bail of the person violating the condition of release may be revoked.
    1. If a defendant upon whom conditions of release have been imposed pursuant to this section is for any reason discharged or released from those conditions, the discharging or releasing court shall notify all law enforcement agencies within its jurisdiction that the defendant is no longer subject to the conditions originally imposed.
    2. The administrative office of the courts, in consultation with the domestic violence state coordinating council, shall prepare a discharge from conditions of release notification form to send to law enforcement agencies as required by subdivision (j)(1) and shall distribute the form to all courts with the authority to discharge or release a defendant from conditions of release.
    1. Any offender arrested for a violation of § 71-6-119, involving physical harm or abuse in which the alleged victim is an adult of advanced age as those terms are defined in § 71-6-102, or for a violation of § 39-15-507 or § 39-15-508 involving neglect or aggravated neglect shall not be released within twelve (12) hours of the time of arrest. The magistrate or other official duly authorized to release the offender may, however, release the offender in less than twelve (12) hours if the official finds that the offender is not a threat to the alleged victim.
    2. The findings shall be reduced to writing. The written findings must be attached to the warrant and shall be preserved as a permanent part of the record. The arresting officer shall make official note of the time of arrest in order to establish the beginning of the twelve-hour period required by this subsection (k).
    3. If the offender is released prior to the conclusion of the twelve-hour period, the official shall make all reasonable efforts to directly contact the victim and inform the victim that the person charged with the offense will be released prior to the conclusion of the twelve-hour period mandated in subdivision (k)(1).
      1. A person who violates a condition of release imposed pursuant to this section shall be subject to immediate arrest with or without a warrant as provided in § 40-7-103(b). If the violation of the condition of release also constitutes the offense of violation of a protective order as prohibited by § 39-13-113, the person shall be charged with the offense, and the bail of the person violating the condition of release may be revoked by the court having jurisdiction of the offense.
      2. If the violation of the condition of release does not also constitute a violation of § 39-13-113, the release condition violation shall be punished as contempt of the court imposing the conditions, and the bail of the person violating the condition of release may be revoked.
      1. Any officer who has reason to believe that a defendant under arrest may pose a substantial likelihood of serious harm to the defendant or to others may make a recommendation to the community mental health crisis response service that the defendant be evaluated by a member of such service to determine if the defendant is subject to admission to a hospital or treatment resource pursuant to § 33-6-403.
      2. The assessment of the defendant by a member of a community mental health crisis response service shall be completed within twelve (12) hours from the time the defendant is in custody or the magistrate or other official with the authority to determine bail shall set bail and admit the defendant to bail, when appropriate. However, if the assessment is being conducted at the end of the twelve-hour period, the member of the community mental health crisis response service may complete the assessment. The magistrate or other official duly authorized to release the defendant may, however, release the accused in less than twelve (12) hours if the official determines that sufficient time has or will have elapsed for the victim to be protected.
      3. If the assessment of the defendant by the member of the community mental health crisis response service indicates that the defendant does not meet the standards of § 33-6-403, the officer who has reasonable cause to believe that the defendant may pose a substantial likelihood of serious harm shall so report to the magistrate or other official with the authority to determine bail and such magistrate or official shall set bail and admit the defendant to bail, when appropriate.
    1. The officer who has reasonable cause to believe that the defendant may pose a substantial likelihood of serious harm shall note the time the defendant was taken into custody for purposes of beginning the twelve-hour assessment period provided in subdivision (l )(1)(B).
    1. Following the arrest of a person for any criminal offense defined in title 39, chapter 13, in which the alleged victim of the offense is a domestic abuse victim as defined in § 36-3-601, the court or magistrate shall make a finding whether there is probable cause to believe the respondent either:
      1. Caused serious bodily injury, as defined in § 39-11-106, to the alleged domestic abuse victim; or
      2. Used or displayed a deadly weapon, as defined in § 39-11-106.
    2. If the court or magistrate finds probable cause to believe that one (1) or both of the circumstances in subdivision (m)(1) did occur, unless the court or magistrate finds that the offender no longer poses a threat to the alleged victim or public safety, the court or magistrate shall impose the twelve-hour hold period and victim notification requirements in accordance with subsection (h).
    3. Prior to the offender's release on bond, the court or magistrate shall issue a no contact order containing all of the bond conditions set out in this section that are applicable to the protection of a domestic abuse victim.

Acts 1995, ch. 410, § 1; 1996, ch. 710, § 1; 1997, ch. 487, § 1; 1999, ch. 128, §§ 1, 2; 1999, ch. 138, §§ 1-3; 2000, ch. 633, § 1; 2001, ch. 309, §§ 1-5; 2004, ch. 780, § 1; 2005, ch. 482, §§ 5, 6; 2006, ch. 920, §§ 5, 6; 2008, ch. 868, § 4; 2010, ch. 937, § 2; 2010, ch. 981, § 5; 2011, ch. 406, § 1; 2012, ch. 848, § 30; 2015, ch. 245, § 1; 2015, ch. 375, §§ 1, 2; 2016, ch. 720, § 1; 2018, ch. 586, § 2; 2018, ch. 1050, § 7.

Compiler's Notes. Acts 2011, ch. 406, § 3 provided that the act, which added subdivision (b)(6), shall apply to all arrests on or after July 1, 2011.

Acts 2018, ch. 1050, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Elderly and Vulnerable Adult Protection Act of 2018.”

Acts 2018, ch. 1050, § 17 provided that the act, which amended this section, shall apply to acts committed on or after January 1, 2019.

Amendments. The 2018 amendment by ch. 586 added (m).

The 2018 amendment by ch. 1050, effective January 1, 2019, in (k)(1), inserted “or for a violation of § 39-15-507 or § 39-15-508 involving neglect or aggravated neglect”.

Effective Dates. Acts 2018, ch. 586, § 4. July 1, 2018.

Acts 2018, ch. 1050, § 17. January 1, 2019; provided, that for the purpose of promulgating rules,  the act took effect on May 21, 2018.

Cross-References. Contempt, title 29, ch. 9.

Probation and eligibility, § 40-35-303.

Adult protection act, title 71, ch. 6, part 1.

Law Reviews.

GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously (Natalie Fox Malone), 43 U. Mem. L. Rev. 171 (2012).

Twelve Angry Hours: Improving Domestic Violence Holds in Tennessee Without Risk of Violating the Constitution, 10 Tenn. J. L. & Pol'y 215 (2015).

Attorney General Opinions. Constitutionality of conditions of release or bail, OAG 95-057 (5/24/95).

Constitutionality of Public Chapter 128, OAG 00-021 (2/15/00).

The 2005 revision of T.C.A. § 36-3-612 in no way modifies the authority of a trial court to punish the violation of a bail condition under the language of T.C.A. § 40-11-150(i), OAG 05-183 (12/22/05).

NOTES TO DECISIONS

1. Violation Found.

Defendants violated T.C.A. § 40-11-150 by holding a domestic violence arrestee for 12 hours before allowing him to post bond when a magistrate had not found him to be a threat to a victim, public safety, or a bail risk. However, the arrestee's constitutional rights to due process were not violated by defendants'  mistake as to the meaning of § 40-11-150(h); the fact that defendant was held for 12 hours before being released on bail did not automatically constitute a constitutional violation. Hopkins v. Bradley County, 338 S.W.3d 529, 2010 Tenn. App. LEXIS 724 (Tenn. Ct. App. Nov. 19, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 369 (Tenn. Apr. 13, 2011).

40-11-151. Notice to person employing bail bondsman.

Any person utilizing the services of a professional bail bondsman or bonding agent shall receive a copy of the following notice with the person's bail bond. No changes may be made in the substance of the notice; but minor printing adjustments may be made. The notice may be printed on the face, back or as a separate attachment to the bond.

NOTICE IF YOU USE A PROFESSIONAL BONDSMAN:

Amount of Charges to You.  The premium fee for your bond should not be more than ten percent (10%) of the face amount of your bond. For example, if your bond is $2,500, the premium on the bond should not be more than $250. In addition to this amount, the law also permits a one-time $25 initiation fee, (T.C.A. § 40-11-316).

Insist on a Receipt.  The law, (T.C.A. § 40-11-304), requires a bail bondsman to keep a duplicate receipt. The receipt must show the name of the person paying money or pledging property, the name of the person for whom it was paid, the account or purpose for which it is received, and the suit, action or matter in which the money is paid.

Collateral That Can Be Required.  If a bondsman insists on collateral in addition to the ten percent (10%) premium fee, you may wish to talk to another bondsman. However, a bondsman may accept collateral, and if the bondsman accepts collateral, the bondsman must give you a written receipt for the collateral, and the receipt shall give in detail a full description of the collateral received and the terms of redemption as required by T.C.A. § 40-11-126(8).

A BONDSMAN MAY NOT LOCK YOU BACK UP OR SURRENDER YOU ARBITRARILY OR WITHOUT GOOD CAUSE. GOOD CAUSE MAY INCLUDE YOUR FAILURE TO PERFORM YOUR OBLIGATIONS UNDER THE CONTRACT YOU HAVE WITH YOUR BONDSMAN (T.C.A. § 40-11-126(7) & § 40-11-132).

Acts 1997, ch. 245, § 1.

40-11-152. Global positioning monitoring system as a condition of bail.

    1. For the purposes of this part, “global positioning monitoring system” means a system that electronically determines and reports the location of an individual through the use of a transmitter or similar device carried or worn by the individual that transmits latitude and longitude data to a monitoring entity through global positioning satellite technology.
    2. “Global positioning monitoring system” does not include a system that contains or operates global positioning system technology, radio frequency identification technology or any other similar technology that is implanted in or otherwise invades or violates the individual's body.
  1. Pursuant to § 40-11-150, the magistrate may order any defendant who is arrested for the offense of stalking, aggravated stalking or especially aggravated stalking, as defined in § 39-17-315, any criminal offense defined in title 39, chapter 13, in which the alleged victim of the offense is a victim as defined in § 36-3-601(5), (10) or (11), or is in violation of an order of protection as authorized by title 36, chapter 3, part 6, to do the following as a condition of bail:
    1. Carry or wear a global positioning monitoring system device and, except as provided by subsection (h), pay the costs associated with operating that system in relation to the defendant; or
    2. If the alleged victim of the offense consents after receiving the information described by subsection (d) and, except as provided by subsection (h), pay the costs associated with providing the victim with an electronic receptor device that:
      1. Is capable of receiving the global positioning monitoring system information from the device carried or worn by the defendant; and
      2. Notifies the victim if the defendant is at or near a location that the defendant has been ordered to refrain from going to or near under § 40-11-150.
  2. Before imposing a condition described by subsection (b), the magistrate must afford an alleged victim an opportunity to provide the magistrate with a list of areas from which the victim would like the defendant excluded and shall consider the victim's request, if any, in determining the locations the defendant will be ordered to refrain from going to or near. If the magistrate imposes a condition described by subsection (b), the magistrate shall specifically describe the locations that the defendant has been ordered to refrain from going to or near and the minimum distances, if any, that the defendant must maintain from those locations.
  3. Before imposing a condition described by subdivision (b)(2), the magistrate must provide to an alleged victim information regarding:
    1. The victim's right to participate in a global positioning monitoring system or to refuse to participate in that system and the procedure for requesting that the magistrate terminate the victim's participation;
    2. The manner in which the global positioning monitoring system technology functions and the risks and limitations of that technology, and the extent to which the system will track and record the victim's location and movements;
    3. Any locations that the defendant is ordered to refrain from going to or near and the minimum distances, if any, that the defendant must maintain from those locations;
    4. Any sanctions that the magistrate may impose on the defendant for violating a condition of bond imposed under this section;
    5. The procedure that the victim is to follow, and support services available to assist the victim, if the defendant violates a condition of bond or if the global positioning monitoring system equipment fails;
    6. Community services available to assist the victim in obtaining shelter, counseling, education, child care, legal representation, and other assistance available to address the consequences of domestic violence; and
    7. The fact that the victim's communications with the magistrate concerning the global positioning monitoring system and any restrictions to be imposed on the defendant's movements are not confidential.
  4. In addition to the information described by subsection (d), the magistrate shall provide to an alleged victim who participates in a global positioning monitoring system under this section the name and telephone number of an appropriate person employed by a local law enforcement agency who the victim may call to request immediate assistance if the defendant violates a condition of bond imposed under this section.
  5. In determining whether to order a defendant's participation in a global positioning monitoring system under this section, the magistrate shall consider the likelihood that the defendant's participation will deter the defendant from seeking to kill, physically injure, stalk, or otherwise threaten the alleged victim before trial.
  6. An alleged victim may request that the magistrate terminate the victim's participation in a global positioning monitoring system at any time. The magistrate may not impose sanctions on the victim for requesting termination of the victim's participation in or refusing to participate in a global positioning monitoring system under this section.
  7. If the magistrate determines that the defendant is indigent, the magistrate shall order the defendant to pay any portion of the costs required by subsection (b) for which the defendant has the ability to pay, as determined by the magistrate. Any portion of the costs required by subsection (b) that the defendant is unable to pay shall come from the electronic monitoring indigency fund established pursuant to § 55-10-419, subject to the availability of funds.
  8. The magistrate that imposes a condition described by subsection (b) shall order the entity that operates the global positioning monitoring system to notify the magistrate and the appropriate local law enforcement agency if a defendant violates a condition of bond imposed under this section.
  9. This section shall not limit the authority of the magistrate to impose any other reasonable conditions of bond or enter any orders of protection under other applicable statutes.
  10. The global positioning monitoring of any defendant ordered pursuant to this section shall be provided by the county or municipality in which the court ordering the monitoring is located and shall not be provided by the board of parole.

Acts 2011, ch. 406, § 2; 2019, ch. 505, § 9.

Compiler's Notes. Acts 2011, ch. 406, § 3 provided that the act, which enacted this section, shall apply to all arrests on or after July 1, 2011.

Acts 2012, ch. 727, § 1 amended § 4-3-104, which concerns name changes of departments and divisions, to provide that references to the board of probation and parole, formerly referred to in this section, are deemed references to the board of parole.

Acts 2019, ch. 505, § 10 provided that notwithstanding any law to the contrary, the state treasurer may use any funds in the electronic monitoring indigency fund to pay for the use of global positioning monitoring devices by indigent persons for eligible offenses as a condition of bail or sentencing ordered by a court between July 1, 2016, and August 16, 2018, that were previously submitted to the state treasurer for approval on or before August 16, 2018.

Amendments. The 2019 amendment rewrote (h), which read: “The magistrate may allow a defendant to perform community service in lieu of paying the costs required by subsection (b) if the magistrate determines that the defendant is indigent.”

Effective Dates. Acts 2019, ch. 505, § 11. July 1, 2019.

Cross-References. Confidentiality of public records, § 10-7-504.

Law Reviews.

GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously (Natalie Fox Malone), 43 U. Mem. L. Rev. 171 (2012).

Part 2
Forfeiture of Bail

40-11-201. Conditional judgment on failure to appear.

  1. If the defendant who gives bail or makes a cash deposit as provided in part 1 of this chapter does not appear according to the undertaking, a conditional judgment may be entered against the defendant and the defendant's sureties, or against the defendant alone, in case of a deposit, or the court may grant an extension.
  2. No forfeiture or conditional forfeiture of any appearance or bail bond shall be rendered in any case where a statement of a licensed physician is furnished to the court showing that the principal in the bond is prevented from attending by some mental or physical disability, or where evidence of the defendant's incarceration is furnished to the court.
  3. The appearance or bail bond shall remain in full force and effect until the principal is physically or mentally able to appear, or until a detainer against the principal is filed with the detaining authority. On the filing of a detainer, the bondsman and sureties shall remain liable for the expenses of returning the principal to this jurisdiction for trial when the principal is released by the detaining authority. If the detainer request is refused or if the detaining authority releases the principal notwithstanding the filing of the detainer, the surety shall not be liable in the undertaking. It shall be the duty of the bondsman or surety to present to the presiding court, in a timely manner, all appropriate documentation evidencing that the detainer was properly filed or refused, or that the detaining authority released the principal notwithstanding the filing of the detainer. The liability of any bondsman or surety shall not exceed the amount of the bail bond. After trial, however, if it is necessary to return the principal to the detaining authority in another jurisdiction, all expenses incurred in the return shall be paid by the state of Tennessee. As used in this subsection (c), “detainer” includes any means of requesting a defendant be returned to this jurisdiction, including, but not limited to, a detainer, habeas corpus, or extradition.

Code 1858, § 5177; Shan., § 7141; Code 1932, § 11688; modified; Acts 1967, ch. 333, § 1; 1977, ch. 370, § 1; T.C.A. (orig. ed.), § 40-1301; Acts 1988, ch. 579, § 1; 2007, ch. 255, §§ 1, 2; 2008, ch. 1131, § 1; 2010, ch. 866, § 1; 2015, ch. 517, § 1; 2017, ch. 100, § 1.

Cross-References. Forfeiture of bail of person awaiting extradition, § 40-9-107.

Forfeiture of bail security, § 40-11-139.

Forfeiture of defendant's bail deposit, § 40-11-120.

Forfeiture of recognizance given by witness, § 40-17-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.45, 4.46.

Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, §§ 1, 11, 12, 15.

Law Reviews.

Bail Bonds Under the Tennessee Bail Reform Act of 1978 (Judge David D. Creekmore), 21 No. 1, Tenn. B.J. 23 (1985).

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477.

Attorney General Opinions. A bail bondsman is relieved from the amount of bond after following the requirements of T.C.A. § 40-11-201(c), and is only liable for the cost of transporting the defendant to the trial court, OAG 07-150 (11/13/07).

NOTES TO DECISIONS

1. Deposit Made — Judgment by Default.

In case money is deposited with the clerk of the court instead of bail, no bond or recognizance is necessary, and a judgment by default may be taken on failure of the defendant to appear. Wash v. State, 43 Tenn. 91, 1866 Tenn. LEXIS 19 (1866).

2. Exclusiveness of Remedy.

In enforcement of forfeiture and for the exoneration of bail, there is no distinction between a recognizance and a bail bond. State v. Gann, 164 Tenn. 601, 51 S.W.2d 490, 1931 Tenn. LEXIS 56 (1932).

3. Filing of Recognizance — Recital in Judgment.

Judgment must show that the recognizance was returned into court, but where it is not expressly stated in the judgment that the recognizance was filed, and the judgment recited that it appeared to the court that a recognizance had been entered into before the committing magistrate, this was a sufficient recital that the recognizance was filed in the court. Pugh v. State, 39 Tenn. 227, 1858 Tenn. LEXIS 285 (1858).

4. Filing of Detainer.

Provision that upon filing of the detainer the court “shall exonerate” the bondsmen and sureties is mandatory. Blankenship v. State, 223 Tenn. 158, 443 S.W.2d 442, 1969 Tenn. LEXIS 398 (1969).

5. Surety Denied Exoneration.

Surety on bail bonds was properly denied exoneration where defendant had been arrested in Louisiana but was released when an extradition request did not issue from Tennessee, and the surety had failed to notify the Tennessee trial judge in the manner required by this section. De Graw v. State, 608 S.W.2d 155, 1980 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. 1980).

Trial court, which found a bonding company was at fault for knowing that the defendant was in Australia but waiting until after the final forfeiture to apprehend him, did not abuse its discretion by ordering the bonding company to forfeit $75,000 of a $200,000 bond pursuant to T.C.A. § 40-11-201. The record did not preponderate against the findings of the trial court, which discredited the bonding company's claim that it did not attempt to obtain the defendant sooner based upon law enforcement's request. In re Am. Bonding Co., — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. June 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 682 (Tenn. Sept. 23, 2016).

6. Review.

Because there was the absence of an adequate record on appeal, the court of criminal appeals had to presume that the order denying a bail bonding company's request to be exonerated was accurate. In re Stoney's Bail Bonding, Inc., — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 559 (Tenn. Crim. App. June 29, 2017).

40-11-202. Scire facias.

A scire facias shall issue to notify the defendant and the defendant's sureties to show cause why the judgment shall not be made final.

Code 1858, § 5178; Shan., § 7142; Code 1932, § 11689; T.C.A. (orig. ed.), § 40-1302.

Cross-References. Form of scire facias, §§ 29-32-108, 29-32-109.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bail and Recognizance, § 15.

NOTES TO DECISIONS

1. Scire Facias Not Filed — Remedy.

Sureties on whom scire facias was not served had a right to enjoin executions upon judgments entered in criminal court on the bail bond. Diehl v. Knight, 158 Tenn. 246, 12 S.W