Issuance of Warrant

  1. Law
  2. Tennessee Code
  3. Criminal Procedure
  4. Warrants
  5. Arrest Warrants
  6. Issuance of Warrant

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  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).


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