II. PRELIMINARY PROCEEDINGS

217

Rule 4: Arrest Warrant or Summons upon Complaint.

(a) Issuance of Warrant or Summons. If the affidavit of complaint and any supporting affidavits filed with it establish that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the magistrate or clerk shall issue an arrest warrant to an officer authorized by law to execute it or shall issue a criminal summons for the appearance of the defendant. More than one warrant or criminal summons may issue on the same complaint.

(1) District Attorney General’s Choice. The district attorney general may direct the clerk to issue either a criminal summons or a warrant.

(2) Examination Under Oath. Before ruling on a request for a warrant, the magistrate or clerk may examine under oath the complainant and any witnesses the complainant produces.

(3) Record of Issuance. The general sessions court clerk shall promptly record in a docket book the issuance of every warrant and summons in the county.

(4) Failure to Appear for Summons. A warrant shall issue for a defendant who fails to appear in response to a criminal summons.

(b) Evidence of Probable Cause for Warrant or Summons. The finding of probable cause shall be based on evidence which may be hearsay in whole or in part provided there is a substantial basis to believe:

(1) the source of the hearsay is credible; and

(2) there is a factual basis for the information furnished.

(c) Form.

(1) Warrant. The arrest warrant shall:

(A) be signed by the magistrate or clerk;

(B) contain the name of the defendant or, if this name is unknown, any name or description by which the defendant can be identified with reasonable certainty;

(C) indicate the county in which the warrant is issued;

(D) describe the offense charged in the affidavit of complaint; and

(E) order that the defendant be arrested and brought before the nearest appropriate magistrate in the county of arrest.

(2) Summons. The criminal summons shall be in the same form as the arrest warrant except that it orders the defendant to appear before a magistrate at a stated time and place.

(d) Bail When Warrant Issued in One County and Executed in Another. A defendant arrested in one county on a warrant issued in another county for the commission of an offense for which the maximum punishment is imprisonment for ten (10) years or less is entitled to be admitted to bail in the county of arrest by the same officials and in the same manner as if arrested in the county issuing the warrant, subject to the following provisions:

(1) the appropriate clerk or magistrate shall determine the amount of bail and state it on the face of the warrant; and

(2) the sheriff or deputy sheriff of the county in which the arrest is made shall transmit the undertaking of bail to the sheriff of the county from which the warrant issued, who shall return it to the court as provided in T.C.A. § 40-11-106.

(e) Execution or Service; Return.

(1) By Whom. The arrest warrant shall be executed by an officer authorized by law. The criminal summons shall be served by a person authorized to serve a summons in a civil action.

(2) Territorial Limits. The arrest warrant or criminal summons may be executed or served in any Tennessee county.

(3) Manner.

(A) Warrant. An arrest warrant is executed by arresting the defendant. The arresting officer need not have the warrant in the officer's possession at the time of the arrest, but on request shall show the warrant to the defendant as soon as possible. If the arresting officer does not have possession of the warrant at the time of the arrest, the officer shall inform the defendant of the offense charged and that a warrant has been issued.

(B) Summons. A criminal summons is served in the same manner as a summons in a civil action.

(4) Return; Cancellation; Reissuance.

(A) Return. The officer executing a warrant shall return it to the magistrate or clerk or other officer before whom the defendant is brought pursuant to Rule 5. On or before the return day, the person to whom a criminal summons is delivered for service shall make a return to the magistrate or clerk before whom the summons is returnable.

(B) Cancellation of Unexecuted Warrant. At the district attorney general’s request, any unexecuted warrant shall be returned to the magistrate or clerk by whom it was issued, who shall cancel it.

(C) Re-Execution or Renewed Service of Warrant or Summons. At the district attorney general’s request made while the affidavit of complaint is pending, the magistrate or clerk may deliver to any authorized person for execution or service the original or a duplicate of:

(i) a warrant, returned unexecuted and not cancelled; or

(ii) a summons returned unserved.

Advisory Commission Comments.

Note that the affidavit of complaint may be buttressed by additional affidavit(s) and that the magistrate or clerk may also examine under oath the complainant and any other witnesses.

A criminal summons may be issued instead of an arrest warrant; when a clerk is performing this judicial function, the district attorney general is empowered to direct the clerk whether to issue a warrant or a criminal summons upon a finding of probable cause.

Section (a)(3) requires that a docket book be kept in which every warrant and summons issued in a given county is recorded. This rule is meant to require any person issuing such a warrant or criminal summons who is not the clerk, to communicate this fact to the clerk of the court of general sessions and to see to it that the issuance is properly recorded. Rigid compliance with this rule is very important to the proper administration of criminal justice, and thus the rule is meant to be mandatory in nature.

Under section (b) probable cause for the issuance of arrest warrants and criminal summonses may be based in whole or in part upon credible hearsay. A different rule applies to the preliminary examination structured under Rule 5.1, in which the "evidence may not be inadmissible hearsay except documentary proof of ownership and written reports of expert witnesses."

The form of the arrest warrant, as set out in Rule 4(c)(1), makes no distinction between warrants issued for persons not yet arrested and those warrants issued for persons already arrested without a warrant. Such a warrant serves a dual function: first, as the authority for an arrest (where an arrest has not already been lawfully made) and, secondly, as a statement of the charge which the accused is called upon to answer. The commission did not recommend two separate warrant forms, one for use where the accused had not yet been arrested, and the second to merely state the charge against one already under arrest, because it is more utilitarian to have only the one form. The command to arrest is obviously surplusage where the warrant is directed against one already in custody; but a warrant in such cases still serves as the official charging instrument, issued after a judicial finding of probable cause, and gives notice of the charge which must be answered.

Rule 4 was substantially derived from the corresponding federal rule and § 40-6-202 of the Law Revision Commission's proposed code.

Note that the rule provides specifically for the reissuance of unexecuted complaints and summonses.

Wherever the words "magistrate" and "clerk" appear in Rule 4, they are to be understood as being qualified by the words "who is neutral and detached and who is capable of the probable cause determination required by this rule." See Shadwick v. City of Tampa, 407 U.S. 345 (1972).

See T.C.A. § 39-15-101 which sets limits on the issuance of arrest warrants for violation of support orders.

Advisory Commission Comments [2007].

Tenn. Code Ann. §§ 40-6-205 and 40-6-215 require that a summons be issued instead of a warrant in certain circumstances.

Advisory Commission Comments [2011].

Rule 4(a)(3) requires the general sessions court clerk to “promptly record in a docket book the issuance of every warrant and summons in the county.”  (Emphasis added.) The words “docket book” must be interpreted in light of Tenn. Code Ann. § 10-7- 12 1 (a)(l), which provides (in pertinent part): “Notwithstanding any other provision of law to the contrary, any information required to be kept as a record by any government official may be maintained on a computer or removable computer storage media. . .instead of bound books or paper records,” if four standards listed in the statute are met.

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