Delinquent/Unruly Proceedings

215

Rule 203: Procedures Upon Taking a Delinquent Child Into Custody.

(a) Delinquent child taken into custody and released.  When a child is taken into custody and is not detainable, the child shall be released to the child’s parent, guardian or other custodian within a reasonable time. The child and the person to whom a child is released shall be served a summons requiring the child’s return to court at such time and place as the court directs.

(b) Delinquent child taken into custody and not released.

(1)  If a child is taken into custody without an order and:

(A) The child is alleged to be delinquent and held in secure detention, a probable cause determination that an offense has been committed by the child shall be made by a magistrate within 48 hours of the child being taken into custody; or

(B) The child is alleged to be delinquent and detained under the special circumstances exception pursuant to T.C.A. § 37-1-114(c)(3), a probable cause determination that an offense has been committed by the child and a finding of special circumstances shall be made by a magistrate within 24 hours, excluding nonjudicial days, but no later than 48 hours of the child being taken into custody.

In either case, if the magistrate does not make the required findings, the child shall be immediately released to the child’s parent, guardian or other custodian. If the required findings are made and the child remains in secure detention, a detention hearing must be held within the timeframes outlined in subdivision (b)(2). “Magistrate” means a person designated as such pursuant to the provisions of T.C.A §§ 37-1-107 or 40-1-106. Probable cause determinations shall be based on a written affidavit, which may be sworn to in person or by audio-visual electronic means.

(2) If a child alleged to be delinquent is taken into custody pursuant to an order of attachment or if a probable cause determination is made pursuant to paragraph (b), the child shall not remain in detention longer than 72 hours, excluding nonjudicial days, but in no event more than 84 hours, unless a detention hearing is held. For a child so detained, a petition setting forth the allegations against the child and the basis for asserting the court’s jurisdiction shall be filed prior to the child’s detention hearing.

(c) Secure detention of delinquent child.

(1)  A child alleged to be delinquent and not released shall be placed in a juvenile detention facility. The court and the child’s parent, guardian or other custodian shall immediately be notified of the child’s location and of the reason for the child’s detention.

(2)  A child not released shall be informed upon being placed in the detention facility, both verbally and in writing, by a person designated by the court of:

(A) The reason for being detained, including the nature of the alleged offense;

(B) The child’s right to a detention hearing and an explanation of the purpose of a detention hearing;

(C) The child’s right to an attorney and that an attorney will be appointed to represent the child as soon as possible prior to the detention hearing if the child’s parent or custodian is financially unable or refuses to retain an attorney for the child;

(D) The right not to say anything about the charges being placed against the child and that anything the child says may be used against the child in court;

(E) The right to communicate with the child’s attorney and parent, guardian or other custodian, and that provision will be made by the detention facility to allow for such private communication.

(d)  Detention Hearing.

(1)  Advisement of Rights. At the beginning of the detention hearing, the court shall inform the parties of the purpose of the hearing and the possible consequences of the detention hearing, and shall inform the child of the child’s rights pursuant to Rule 205.

(2)  Evidence.  Any finding that there is probable cause to believe that an offense has been committed, and that the child committed it, shall be based on evidence admitted pursuant to the Rules of Evidence, except that such evidence may include reliable hearsay. 

(3)  Required Determinations.  The court, in making the decision on whether to detain the child, shall:

(A) Determine whether probable cause exists as to whether the charged offense or a lesser included offense has been committed and whether the child committed it; and

(B) If probable cause has been determined, whether the offense is one which qualifies for continued detention under T.C.A. § 37-1-114; and

(C) If probable cause has been determined and the offense qualifies for continued detention, determine whether it is in the best interest of the child and the community that the child remain in detention pending further hearings. In making this best interest determination, the court should consider the likelihood that the child would abscond or be removed from the jurisdiction of the court; and

(D) Determine whether any less restrictive alternatives to detention are available which would satisfy the court’s best interest determination above. The court may impose conditions on release such as the setting of bail, restrictions on the child’s movements and activities, requirements of the child’s parent, guardian, or custodian, or other community-based alternatives as an alternative to continued detention.

(4)  Release of Child. If the court does not find the child is detainable as above, the child shall be released to an appropriate parent, guardian or responsible adult. The court may impose conditions on release as above, and a hearing shall be scheduled.

(5)  Continued Detention of Child.If the court orders the child to be detained, or if the child waives a the detention hearing, the court shall ensure that the child’s case will be scheduled so as to limit the time the child spends in secure detention.

(6)  Waiver of Time Limit for Detention Hearing.The time limit for the hearing may be waived by a knowing and voluntary written waiver by the child. Any such waiver may be revoked at any time, at which time a detention hearing shall be held within the time frame outlined in T.C.A. § 37-1-117.

Advisory Commission Comments.

This rule applies only to children alleged to be delinquent. A child alleged to be unruly and taken into custody may not be held in a secure facility for a period longer than allowed in T.C.A. § 37-1-114.

Subdivision(b) clarifies that upon a warrantless arrest of a child alleged to be delinquent, a neutral and detached magistrate must make a probable cause determination that the child has committed the delinquent offense within 48 hours of the arrest. This determination may be made ex parte. Under the Fourth Amendment, in order for a state to detain a person arrested without a warrant, a judicial officer must determine that probable cause exists to believe the person has committed a crime. Gerstein v. Pugh, 420 U.S. 103 (1974). The judicial officer must make this determination “either before or promptly after arrest.” Id. at 124. Seventeen years later, the Court further refined its Gerstein decision, holding that probable cause determinations must be made within 48 hours of a warrantless arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991) ( “A jurisdiction that chooses to offer combined [probable cause and

arraignment] proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest”). Although the Supreme Court has not addressed whether Gerstein hearings are required for

juveniles, the Sixth Circuit has answered this question affirmatively. Cox v. Turley, 506 F.2d 1347, 1353 (6th Cir. 1974) (“Both the Fourth Amendment and the Fifth Amendment were violated because there was no

prompt determination of probable cause – a constitutional mandate that protects juveniles as well as adults”). See also State v. Bishop, No. W2010-01207-SC-R11-CD, 2014 Tenn. LEXIS 189, 2008 WL 888198 (Tenn. 2013), and State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996).

The probable cause determination in subdivision (b)(1) must be based on a written affidavit reciting the facts, which may be sworn to in person or by audio-visual electronic means. Black’s Law Dictionary defines affidavit as “(a) voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths."  Black’s Law Dictionary 66 (9th ed. 2009).

Subdivision(b)(2) refers to an “order of attachment.” The Commission uses the phrase “order of attachment” to refer to any court order commanding that the child be taken into custody.  Some jurisdictions may refer to these orders as orders of arrest or arrest warrants.  Such orders of attachment may direct the appropriate authorities to take the child to a detention facility, to the police station, to court, or to another place.

Wherever possible, community-based alternatives to secure detention facilities should be used. This preference is in keeping with the prohibition in T.C.A. § 37-1-114 against any detention or shelter care of children unless “there is no less drastic alternative to removal of the child from the custody of his parent, guardian or legal custodian available which would reasonably and adequately protect the child's health or safety or prevent the child's removal from the jurisdiction of the court pending a hearing.”

The Commission recognizes that detention is a severe curtailment of the child’s liberty and affects not only the child, but the child’s parent, guardian or custodian. A child in detention is presumed to be innocent and retains all rights guaranteed to children facing charges but who are not detained.  Accordingly, detention should be as brief as possible and should be used only when absolutely necessary to accomplish the objectives of the statute.  The court should determine, on an individual basis, whether the child’s continued detention is warranted under T.C.A. § 37-1-114 and that there are no less drastic alternatives available. The court should make specific findings of fact justifying continued detention.

A child alleged to be delinquent has the right to an attorney at the detention hearing, as well as all other stages of a delinquency proceeding. The court must inform the child of the right to an attorney at the beginning of the hearing, pursuant to the procedures in Rule 205. Also, in order for a child to effectively waive the right to an attorney, the court must comply with the process to obtain a knowing and voluntary waiver in that rule.

Courts should have an established practice in place for the appointment of attorneys as soon as possible prior to detention hearings. If at all practicable, detention hearings should not be continued for the sole reason of locating and appointing attorneys. The Commission recognizes that time constraints may interfere with this objective, but would stress that continued deprivation of liberty is a significant event in the life of a child.

[As amended by order filed December 21, 2016, effective July 1, 2017.]

Advisory Commission Comments [2017].

A new sentence (which reads, "If the required findings are made and the child remains in secure detention, a detention hearing must be held within the timeframes outlined in subdivision (b)(2)") is added to subdivision (b)( 1) to provide further clarification that a detention hearing must be held even though the required 48-hour probable cause findings are made.

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