40-6-205 - Issuance of warrant. - Tennessee Statutes

40-6-205. Issuance of warrant.

(a)  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. Except as provided in subsection (b), if the affiant is not a law enforcement officer, as defined by § 39-11-106, or if none of the affiants in the case of multiple-affiants is a law enforcement officer, as defined by § 39-11-106, then a criminal summons as provided in § 40-6-215 shall issue instead of a warrant of arrest.

(b)  Notwithstanding the provisions of subsection (a), the magistrate may issue a warrant of arrest instead of a criminal summons if:

     (1)  The offense complained of is a felony, as defined in § 39-11-110, or the offense of stalking, as defined in § 39-17-315;

     (2)  There are multiple-affiants and one (1) or more of the affiants is a law enforcement officer as defined in § 39-11-106;

     (3)  After examination of the affiant and the affidavit of complaint, the magistrate has probable cause to believe that the issuance of an arrest warrant rather than a criminal summons is necessary to prevent an immediate danger of domestic abuse to a victim as defined in § 36-3-601;

     (4)  The affiant has a written police report concerning the incident for which the arrest warrant is sought or it can be verified that the written report is on file with the appropriate law enforcement agency;

     (5)  A reasonable likelihood exists that the person will fail to appear in court;

     (6)  There are one (1) or more outstanding warrants or criminal summons for the person; or

     (7)  The person cannot, has not or will not offer satisfactory evidence of identification.

(c)  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 an 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.]