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The Tennessee Law of Arrest

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The Tennessee Law of Arrest Vanderbilt Law Review Volume 2 Issue 4 Issue 4 - June 1949 Article 10 6-1949 The Tennessee Law of Arrest Rollin M. Perkins Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Common Law Commons, Criminal Law Commons, and the State and Local Government Law Commons Recommended Citation Rollin M. Perkins, The Tennessee Law of Arrest, 2 Vanderbilt Law Review 509 (1949) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol2/iss4/10 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. THE TENNESSEE LAW OF ARREST ROLLIN M. PERKINS * I. INTRODUCTION ................ 510 A. Notice of Arrest ......... 588 A. Definitions ................ 510 1. In General ............. 589 B. The Purpose of Arrest ..... 517 2. Form of the Notice ...... 591 II. WHAT CONSTITUTES ARREST... 518 3. Time of Giving Notice.. 592 A. Actual Imprisonment ...... 518 4. When Notice Not Re- B. Constructive Imprisonment.. 519 quired ................ 592 C. Purpose of Imprisonment .. 520 B. Use of Force ............. 593 D. Concepts Distinguised from 1. Reasonable Force ....... 593 Arrest .................. 520 2. Deadly Force .......... 595 III. AUTHORITY TO ARREST ........ 530 a. To Stop One in Flight 596 A. Under a Warrant ......... 530 (1) Misdemeanor .... 596 1. The Warrant of Arrest.. 531 (2) Felony .......... 598 a. Issuance of the Warrant 531 (i) Seriousness of b. Requisites of a Valid Felony' ... 599 Warrant .......... 535 (ii) Innocence of c. "Fair on its Face" .... 538 Arrestee .. 601 d. General Warrants ... 541 (iii) Require- e. Life of Warrant ...... 544 ment of 2. Execution of the Warrant 544 N e c e s - a. Execution ............ 545 sity ....... 603 b. By Whom ........... 545 b. To Overcome Resist- c. Where ............... 547 ance ............... 605 d. Arrest of Whom ..... 550 c. In Self-Defense ...... 607 e. Possession of the War- d. To Prevent Escape .. 608 rant ............... 552 3. Handcuffing Arrestee .... 609 f. Exhibition of the War- 4. Breaking Doors' and Win- rant ............... 554 dows ................. 610 g. Return of the Warrant 556 C. Search and Seizure ........ 612 B. Oral Order of a Magistrate 556 1. Constitution and Statutes 612 C. Assisting an Officer ...... 558 2. Basis for Search and Seiz- D. Without a Warrant ...... 560 ure .................. 614 1. Public Offense Committed 3. What Constitutes Search 616 in his Presence ....... 563 4. Extent of Search ....... 617 2. Threatened Breach of the a. The Person .......... 617 Peace ................ 568 b. Purse or Luggage .... 618 3. Felony Committed by Ar- c. Automobiles ......... 619 restee ................ 570 d. Buildings ............ 619 4. Reasonable Suspicion of 5. Time of the Search ..... 622 Felony ............. 572 6. What May Be Seized .. 623 5. Charge of Felony Pre- 7. Protective Custody ..... 624 ferred by Another .... 577 D. Disposition of Prisoner ... 625 6. Official Information .... 578 1. No Commitment Until Ex- E. Fugitives from Other States 580 amination ............ 626 IV. PLACE OF ARREST ............. 583 2. Time of Examination ... 627 A. In the Bailiwick ......... 583 3. Holding Incommunicado.. 631 B. Outside the Bailiwick ...... 584 4. Questions Before Arrest.. 632 C. In a Federal Enclave ..... 586 5. Warning ............... 633 V. Tizm OF ARREST ............. 587 6. Bail ................... 633 VI. DUTIES AND PRIVILEGES OF AR- 7. Care of Prisoner ....... 634 RESTER ..................... 588 VII. ImmuNrry FROM ARREST ...... 635 *'Acting Dean and Frank C. Rand Professor of Law, Vanderbilt University. The author has written upon the law of arrest on previous occasions. The Foundation Press, Inc., Brooklyn, kindly authorized him to draw upon any part of the material in the chapter on this subject (pt. I, c. 12) in his Elements of Police Science (1942). And the Iowa Law Review gave similar permission with reference to the article, The Law of Arrest, 25 IowA L. R €. 201 (1940). The author is deeply indebted to both publishers for such permission. He is also -indebted to Mr. Hugh E. Wright for assistance in checking the authorities. VANDERBILT LAW REVIEW [ VOL. 2 A. The Chief Executive ...... 635 C. Proceedings under Federal B. Diplomatic Immunity ...... 637 Law .................... 647 C. Congressmen and Legislators 639 D. Exclusion of Evidence ....648 D. Electors .................. 640 E. Other Consequences ....... 650 VIII. CONSEQUENCES OF UNLAWFUL IX. RESISTING ARREST ........... 652 ARREST .................... 640 A. Resisting Lawful Arrest ...653 A. Damages in a Civil Action.. 642 B. Resisting Unlawful Arrest.. 655 B. Criminal Prosecution ...... 645 I. INTRODUCTION The many sections in the Tennessee Code' dealing with arrest 2 consti- tute an incomplete codification of the common law of this subject modified by some important changes. This statutory material leaves the common law in full force wherever it is either silent on the particular point or merely restates the pre-existing rule. Those sections which produce results different from those found under the unwritten law leave the latter in the realm of matters having historical interest only,--as far as the law of this state is con- cerned. The purpose of this undertaking is to depict the present law of Ten- nessee on arrest. Hence the common law will be emphasized wherever it has not been changed by our statutes but will receive relatively little attention where it has been superseded by legislative enactment. References to statutes of other jurisdictions will be made when useful, without attempting to explain all of the different types of statute to be found in the various states on certain 3 points. A. Definitions4 An arrest is the taking of another into custody for the actual or pur- ported purpose of bringing the other before a court, body or official, or of otherwise securing the administration of the law.5 An arrestee is one who has been arrested or whose arrest is being sought or attempted. 1. Williams' Annotated Code of Tennessee, 1934, with Cumulative Pocket Supple- ments. All of the statutory citations in the following footnotes are to this code unless otherwise indicated. 2. There are 46 sections in the chapter on "Arrest" (pt. IV, tit. 4, c. 5) §§ 11517- 11546.8, together with numerous others scattered throughout the code, such as §§ 172.4, 696-99, 845.15, 1942, 2771, 3343, 3343.1, 3358, 3564, 5101, 10106, 11018-9, 11044, 11047, 11048, 11057-59, 11103-35, 11417-26, 11430, 11443, 11470, 11608-20, 11683-87, 11711-15, 11862, 11863, 11890-92, 11925-35. 3. For example, the American Law Institute found six types of statute dealing with the authority of an officer to arrest on suspicion of felony. A. L. I. CODE OF CRIMINAL PROCEDURE 236 (Official Draft with Commentaries, 1931). 4. This article is prepared with the hope that it may be useful to peace officers as well as to lawyers and the method of presentation has been governed accordingly. 'Start- ing with definitions is for the benefit of the peace officer. 5. This (with the addition of "body or official") is the definition of the American Law Institute except that the Institute adds "of the actor" after the word "custody." RESTATEMENT, TORTS § 112 (1934). An earlier definition in a proposed code had been unduly limited in its scope: "Arrest is the taking of a person into custody in order that he may be forthcoming to answer for the commission of an offense." A. L. I. CODE OF CRIMINAL PROCEDURE § 18 (1931). 1949 ] THE TENNESSEE LAW OF ARREST 511 An arrester is one who has made, or is attempting or seeking to make, an arrest. Assisting escape is aid rendered to a prisoner in lawful custody to 6 enable him to depart without authority. Bailiwick is the territory or area throughout which a peace officer is 7 authorized to serve in his official capacity. A breach of the peace (in the narrow, sense) "is a public offense done by violence or one causing or likely to cause an immediate disturbance of public order."8 A breach of the peace (in the broad sense) is any public offense.9 A capias is a writ issued by the clerk of the court, after an indictment has been filed, directing the arrest of the defendant named in the indictment.1 0 (It is often called a "bench warrant.")" 12 A capital offense is a crime punishable by death. 6. "If any person, by any means whatever, aid or assist any prisoner lawfully de- tained in any jail or place of confinement, other than the penitentiary, for any felony, in an attempt to escape, whether such escape be effected or not, he shall be punished by imprisonment in the penitentiary not exceeding ten years." § 11049. § 11050 makes it a misdemeanor to render such assistance to one detained for a criminal offense -other than a felony. § 12157 provides a penalty of from two to ten years for aiding a prisoner to escape from the penitentiary. The penalty is one to five years for aiding escape from other state institutions (except that the jury may reduce it to a period of less than one year in the jail or workhouse). §§ 11052-3. An escape or attempt to escape from custody while going to and from the penitentiary or while in court is punishable as though made from the penitentiary. § 12178. 7. This word, so used from ancient times, is much more appropriate to express this idea than the word "jurisdiction," which means "to speak the law." Blackstone, speaking of the sheriff, says: "As the king's bailiff, it is his business to preserve the rights of the king within his bailiwick; for so his county is frequently called in the writs; a word introduced by the princes of the Norman line; in imitation of the French, whose territory is divided into bailiwicks, as that of England into counties." 1 BL.
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