Magistrate says law allows for arrest without warrant

Lorrie Miller, chief magistrate, speaks to Hamilton County commission. (Photo David Tulis)

Chief magistrate of Hamilton County, Lorrie Miller, says the “arrest by officer without warrant” law is to be read broadly as giving virtually unlimited rationale for cops and deputies to arrest without warrant. She says my statement in earlier correspondence is inaccurate, and that a car crash is not a prerequisite for an officer arrest without warrant. — DJT

By Lorrie Miller / Chief magistrate

I have reviewed the records on the defendants you mentioned.  They are all valid arrests according to the information I have.  Your statement of the law that:

A person in a car or truck who is stopped under Tennessee code annotated § Title 55 (vehicles and motor vehicles) cannot be arrested without a warrant if there is no traffic accident.  

is inaccurate.  Per 40-7-103 (a)(1), an officer may arrest a person without a warrant for a misdemeanor offense (“public offense”) committed IN HIS/HER PRESENCE. 

If the officer witnesses the driving and confirms that the driver does not have a valid license, then the officer may arrest the defendant.  The other grounds related to accidents are outlined because in most instances, officers do NOT witness accidents as they occur. They arrive on scene to investigate after the driving has taken place.  The statute outlines scenarios where officers may arrest persons they find at the scene of an accident that meet the criteria EVEN THOUGH they didn’t actually witness the misdemeanor themselves.

Now, 40-7-118 outlines when officer should utilize citation rather than arrest.  I believe I referred to some of those grounds in speaking on your show. If an officer has the authority to arrest for driving on revoked, this statute generally states that they should cite the person rather than take the person into custody unless a factor under section (c) exists.

You should be aware that these are statutory requirements and NOT constitutional requirements.  There MAY be constitutional considerations that overlap, but not necessarily. 

According to State v. Bryant, 678 S.W.2d 480 (Tenn. Crim. App. 1984), the limitation on warrantless arrests for misdemeanors in 40-7-103 is not constitutionally required.

Here’s the disputed statute

40-7-103. Grounds for arrest by officer without warrant.

(a)  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; [italics added]

(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.

(b)  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.

(c)  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.

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