For many offenses, you cannot be arrested without a warrant

Austin Garrett is the heir apparent for Hamilton County sheriff Jim Hammond. Chief Deputy Garrett works for an administration that cares little about defending the rights of the people and restraining lawless customs of law enforcement, such as misuse of the arrest by officer without warrant law and the state shipping and freight law at Title 55.. (Photo David Tulis)

Hamilton County magistrate Lorrie Miller and the foremen of Hamilton County’s two grand juries are considering today my assertion that the people have a right to be free of arrests without a warrant except for 11 exceptions.

That is the law, but the law is being disregarded thanks to a pro-police reading of the term “public offense.” 

By David Tulis / 92.7 NoogaRadio

Briefly, a cop can arrest you for a public offense or a breach of the peace committed in his presence, and for 10 other offenses listed in the law. A public offense is a specific kind of offense in the nature of a breach of the peace. But cops arrest people routinely for crimes that do not fit the definition of “public offense,” making it easy for the consiglieri in Hamilton County in doing their jobs, and saving them much inconvenience. Constitutional government, however, is all about making arrests difficult, complex and full of friction and inconvenience.

An important supreme court case gives further insight into my analysis of “public offense.” 

The types of crimes in “public offense” in Tennessee law need to have a “public interest,” as well. That’s the language in Brown v. Texas 443 U.S. 47 (1979).  I would say that the concept of “public interest” is not as strong a defense of our rights as that of “public offense.”

But the two concepts are similar, and we will better understand “public offense” and its misuse if we look at “public interest.”

Here in Hamilton County and all across Tennessee, authorities agree that to read the law in a way that ignores so that people can be arrested without warrant for any crime whatsoever without limitation. If the officer gets your name and looks you up, you have confessed yourself into an arrest without the alleged crime’s meeting the qualifications of a public offense for a crime for which there is a public interest

Brown is about an arrest of a man without their having been an articulable probable cause that he had committed a crime or was about to. He was just in a shady are of town, and because he refused to give his name, he was charged with a crime lf refusing to identify himself. He was accused and convicted of saying and admitting nothing.

The flaw in the State’s case is that none of the circumstances preceding the officers’ detention of appellant justified a reasonable suspicion that he was involved in criminal conduct. Officer Venegas testified at appellant’s trial that the situation in the alley “looked suspicious,” but he was unable to point to any facts supporting that conclusion.[2]There is no indication in the record that it was unusual for people to be in the alley. The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct. In short, the appellant’s activity was no different from the activity of other pedestrians in that neighborhood. When pressed, Officer Venegas acknowledged that the only reason he stopped appellant was to ascertain his identity. The record suggests an understandable desire to assert a police presence; however, that purpose does not negate Fourth Amendment guarantees.

In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant’s right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. 

The judges overturned that conviction. There was not sufficient public interest in the 

In Tennessee, the crimes that are notorious and breaches of the peace and constitute a “public offense” are also rightly described as having a “public interest.”

The ‘public interest’ in broken taillight

Let me give examples.

➤ A man in a car with a dead tag light is not causing a public offense because that offense (under Title 55) is not one for which one citizen at common law could arrest another. There is not a public interest in whether a person’s taillight is working, or not.

➤ A man “driving on revoked” is not causing a public offense; that offense of “driving on revoked” is not one of a “public interest” and not subject to common law arrest powers by one citizen upon another.

➤ No citizen would make a common law arrest for another person using a cellphone while “driving” in Tennessee’s “no hands” ban on cellphone use by drivers and operators of motor vehicles.

These infractions are at best administrative wrongs, administrative causes of actions. They are not arrestable crime, and certainly not crimes for which an officer can arrest without warrant. These are not public offenses, and these offenses are not of “public interest.”

➤ There is no public interest in a person driving on revoked.

➤  Or driving on suspended. 

➤ Or “using the street with the sidewalk is available,” the purported ordinance violation in one Chattanooga case by cops in a black neighborhood. 

➤ Or “light law” violation or “lane change violation” and many other offenses which are not notorious, intimidating, dangerous and part of a breach of the peace.

➤ Or even whether a citizen has contraband on his person or in his car, as it is claimed against James Myron Mitchell, in Hamilton County’s most recent notorious arrest. It is claimed he had drug paraphernalia and drugs in his possession when he was arrested.

Current practice in Chattanooga and across the state is that the cop can arrest a person without a warrant FOR ANY ALLEGED OFFENSE, disregarding Tenn. Code Ann. 40-7-103, grounds for arrest by officer without a warrant.

The Judges who decided Brown v. Texas offer an unusual appendix in their brief opinion, an exchanged between the Texas prosecutor and the judge. In oral argument, a judge highlights that a person cannot be arrested simply because he does not identify himself. Not identifying yourself apart from an articulable suspicion or probable cause by the officer is not a crime for which you can be arrested

When can I be arrested for not answering a question against myself. This exchange is below in full with emphasis added by me.


“THE COURT: . . . What do you think about if you stop a person lawfully, and then if he doesn’t want to talk to you, you put him in jail for committing a crime.

“MR. PATTON [Prosecutor]: Well first of all, I would question the Defendant’s statement in his motion that the First Amendment gives an individual the right to silence.

“THE COURT: . . . I’m asking you why should the State put you in jail because you don’t want to say anything.

“MR. PATTON: Well, I think there’s certain interests that have to be viewed.

“THE COURT: Okay, I’d like you to tell me what those are.

“MR. PATTON: Well, the Governmental interest to maintain the safety and security of the society and the citizens to live in the society, and there are certainly strong Governmental interests in that direction and because of that, these interests outweigh the interests of an individual for a certain amount of intrusion upon his personal liberty. I think these Governmental interests outweigh the individual’s interests in this respect, as far as simply asking an individual for his name and address under the proper circumstances.

“THE COURT: But why should it be a crime to not answer?

“MR. PATTON: Again, I can only contend that if an answer is not given, it tends to disrupt.

“THE COURT: What does it disrupt?

“MR. PATTON: I think it tends to disrupt the goal of this society to maintain security over its citizens to make sure they are secure in their gains and their homes.

“THE COURT: How does that secure anybody by forcing them, under penalty of being prosecuted, to giving their name and address, even though they are lawfully stopped?

“MR. PATTON: Well I, you know, under the circumstances in which some individuals would be lawfully stopped, it’s presumed that perhaps this individual is up to something, and the officer is doing his duty simply to find out the individual’s name and address, and to determine what exactly is going on.

“THE COURT: I’m not questioning, I’m not asking whether the officer shouldn’t ask questions. I’m sure they should ask everything they possibly could find out. What I’m asking is what’s the State’s interest in putting a man in jail because he doesn’t want to answer something. I realize lots of times an officer will give a defendant a Miranda warning which means a defendant doesn’t have to make a statement. Lots of defendants go ahead and confess, which is fine if they want to do that. But if they don’t confess, you can’t put them in jail, can you, for refusing to confess to a crime?” App. 15-17 (emphasis added).

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