Magistrate Miller says state obeying law limiting arrests by officer without warrant

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

Hamilton County’s chief magistrate, Lorrie Miller, says that my analysis of the law limiting arrest powers of police officers without a warrant is novel, and that it is wrong. Her office complies with Tenn. Code Ann. § 40-7-103 when cops arrest people without a warrant because the crime is committed “in the officer’s presence,” she says. 

But the “officer’s presence” test is one of two that must be met for the warrant requirement to be ignored. The other test is that the crime must be of a specific kind, one called “public offense.” The law itself defines public offense as one in the nature of riot, disorder, disturbance and public threat. Judge for yourself:

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. [emphasis added]

The word public offense, I argue, is defined narrowly to refer to a certain type of offense. That would exclude “driving on suspended” or “driving on revoked” and almost all drug charges, which are not breaches of the peace. My review of cases and legal encyclopedias is incomplete, but my reading thus far strongly indicates a serious problem in Hamilton County and across the state.

Namely, that our right to be arrested under warrant as a general practice has been overturned, and that the state prospers itself as against us with widespread arrests made easy by rejection of this statute, the powers of which are protective of us in light of God-given guarantees respected and noted by the Tennessee bill of rights. 

Here is my letter, followed by the courteous reply of chief magistrate Miller.

Law’s guarantees restrain police powers

It’s 30 days since my inquiry about your authority assumed to convert “public offense” in Tenn. Code Ann. § 40-7-103 to mean “any crime.” What is the legal authority to have arrested Jon Luman, Jimmy Lee Moore and Gregory Parker for alleged offenses on the roadway that did not follow any sort of car crash or traffic accident?

These and other offenses, as my initial readings into cases on public offense indicates, are not the sort of crimes for which an officer may arrest a citizen, resident or human being apart from a lawfully sworn warrant.

I would appreciate some discussion on these points, and some citations or legislative revisions, that support your and police officers’ interpretation of the law as against the rights of the people given by God himself and protected by our state and federal constitutions.

I believe my analysis is correct, and propose it to you as a correct interpretation of this statute, which limits your office and restrains arrest powers to be in line with constitutional liberty. 

We cannot both be right. If “public offense” does not include the elements of riot or breach of the peace (think Avery Gray’s daughter’s arrest in today’s news cycle), then many arrests are out of conformity with this clear statute protecting us citizens and restraining the power of your office. Respectfully yours, etc.

Miller: ‘We are in compliance’

I interpreted your last email to be a restatement of your position and a general request for me to reconsider mine. I did not know that you were anticipating some response.  I have made myself available to you on multiple occasions to discuss various issues by email, by phone, in person and even on your show. I certainly did not intend to ignore what you intended as a request for reply.  I have reviewed your multiple emails on this issue thoroughly. I believe I understand your rationale. As I have stated previously, I disagree with your interpretation. 

I find your interpretation of this statute you cite to be unconventional.  Driving on a revoked or suspended license as set out in TCA 55-50-504 is a crime in Tennessee, and officers are allowed to arrest without warrant for offenses committed in their presence.  TCA 40-7-103 also allows officers to arrest when they did NOT observe the driving under the specific instances listed.  

TCA 40-7-118 sets out when an officer should cite the defendant rather than physically arrest and transport the defendant to jail. 

All these statutes must be considered in addition to the constitutional protections of the Tennessee Constitution and the United States Constitution.  On behalf of all the magistrates I supervise, I can assure you we are in compliance with all constitutional concerns with respect to this issue you raise.  With respect, I consider this discussion concluded as we must agree to disagree.

The David Tulis show is 1 p.m. weekdays, live and lococentric.

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