Do judges, cops nullify law intended to protect citizenry from warrantless arrest?

Lorrie Miller, the county’s chief magistrate, speaks with fellow magistrate Rodney Strong outside the county commission doorway in the old courthouse in Chattanooga. (Photo David Tulis)

To Chief Hamilton County magistrate Lorrie Miller:

The Tennessee general assembly gives 11 grounds on which an officer may arrest a person without a sworn warrant. 

When you make the term “public offense” as broad as you do, do you and the courts allow for arrest without warrant for potentially hundreds of crimes? 

By David Tulis / 92.7 NoogaRadio

Do you negate the intent of the statute, make the whole statute meaningless and pointless? My big question is to you, a licensed attorney 20 years and chief magistrate in our county the past year: Do the rules of statutory construction allow such a reading, and such an outcome?

My reading sharply differs, and accounts for the rights of the people pursuant to their guarantees in the constitution. The framing of the statute must come in light of the right of any individual person to be free from warrantless search and seizure in general, with extremely limited exceptions listed in the law.

You are abrogating this right, nullifying this right with your practice, clearcutting the way for police power without warrant against the people. Your policy is arrest under general warrant.

Not every crime is public offense

Let’s back up to the originating points of Tennessee law. The reason there are 11 grounds for arrest without warrant is that the General Assembly, as representative of the people, wants police and courts to be inefficient and slow. It wants the process of arrest to be troublesome and complicated. The general assembly ordains that arrest in general be more remote a prospect for any citizen confronted by an officer. So it intends the concept of public offense to be understood narrowly. And, of course, in context and under the black letter of what it writes.

Here’s the easiest way to look at “public offense.” It is the type of crime for which a citizen might arrest another citizen (a mala in se or common law-type offense). No citizen would arrest another for “driving on revoked” or carrying 5 ounces of marijuana or having missed a court date (these being mala prohibitas, or “paper crimes” with no victim). The latter sorts of infractions or crimes are not included in “public offense.” See Tenn. Code Ann. § 40-7-110. 

A public offense is something like a suicide attempt, a car crash caused by drug or alcohol use, a robbery, an assault, a fight in public, a profane person on a sidewalk aiming a gun at others, someone threatening to blow up a package he claims is a bomb, vicious threats uttered wildly in a store, a fight at a park that involves outsiders.

A public offense is something that is a spectacle, threat, noisy public incident, and the like. One can get a flavor of the type of offense in view at TCA 39-17-302, riot; 39-17-303, aggravated riot; 39-17-309, civil rights intimidation; 39-17-305, disorderly conduct; 39-17-308, harassment.

Law limits definition of public offense

The statute in question, Tenn. Code Ann. § 40-7-103, uses the term “public offense” but also defines it.

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.

The statute bears out a narrow reading of the crime being a breach of the peace. The offenses listed as grounds for arrest by officer without a warrant are notorious in nature, and public. A cop or deputy is allowed to arrest a person without a warrant on the following grounds:

➤ A “felony” (a)(1) and (a)(2)

➤ A charge “made, upon reasonable cause, of the commission of a felony” (a)(4)

➤ A suicide

➤ Domestic disturbance (a)(7)

➤ Stalking (a)(9)

➤ Car crash with DUI or flight.

Regarding the last item in the list. Four grounds exist for arrest without a warrant. They touch on the use of cars, trucks and motorbikes on the public right of way. These grounds are Nos. 6, 8, 10 and 11. Each requires there be a “traffic accident.” No. 11 allows for arrest without warrant if a “driver” is involved in an accident causing “serious bodily injury” or death and that driver/operator does not have a “valid driver license” or proof of insurance.

These automobile-related grounds are the same category as the others identified in the list. These grounds are public offense and breach of the peace. Public offense and breach of the peace are synonyms. 

How are you protecting the people?

Your office of magistrate is responsible for protecting a member of the public brought to bar by police and district attorney. Your office makes the initial survey of state claims against the citizen and your office imposes the inconvenience, delay, inefficiency upon the operation of the accuser in the defense of the accused and in respect of his God-given, constitutionally guaranteed, unalienable and inherent rights. The general assembly intends with this law to protect the public from arrest without warrant, and to inject friction and heat into the process of making criminal cases. They are to be difficult to launch and secure. 

You are using this law to ordain arrest, booking, incarceration and the whole pattern of criminal accusation that is particularly harmful to what the constitution calls the “free people” of Tennessee. Especially wronged by your usage and custom are African-Americans, descendants of the enslaved; the poor and ignorant; immigrants; aliens and strangers; and orphans and widows.

Constitutional government rejects the crime-fighting felicity and lubrication your theory allows. This law is a defense of the people at the same time that it empowers officers to arrest without a warrant. It denies you any sort of blanket permission slip to arrest any person at any time who may be chargeable with a criminal offense. But that is what you have done.

If the cop has no warrant in a roadside encounter that is not part of a traffic accident under Tenn. Code Ann. § Title 55, he must release that person. He or she must depart in his cruiser, drive downtown to the jail and come to you for or some other judge for an arrest warrant, and hope for the best in finding the person named. 

In a roadside encounter between an officer and a car user or traveler, The prerequisite for an arrest without a warrant is clear. 

There must be an auto accident.

The cases of Jimmy Lee Moore, John Luman and Gregory Parker do not qualify for arrest without a warrant. None of these men whose cases I’ve covered as a member of the press were involved in a crash.

Are arrests of Luman, Parker, Moore illegal?

The arrests of these men and thousands of others appear to be illegal, ultra vires to the clear writing of the law.open the city and/or the county to legal action for tort, fraud, criminal negligence and oppression. False arrest is more than civilly actionable. If I am correct in my analysis, it is a criminal.

Criminal law cuts two ways, against the citizen, and against the officer and the state representative in its use. 

I request a review of the statute in light of my assertions and your care and the other judges’ high regard for Hamilton Countians’ constitutionally guaranteed rights. Respectfully yours, etc.

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