RULE 4. ARREST WARRANT OR SUMMONS UPON COMPLAINT(a) Issuance. If it appears from the affidavit of complaint or supporting affidavits filed with the affidavit of complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall be issued by a magistrate or clerk to any officer authorized by law to execute it, or a criminal summons for the appearance of the defendant shall issue in lieu thereof. Before ruling on a request for a warrant, the magistrate or clerk may examine under oath the complainant and any witnesses the complainant may produce. The magistrate or clerk may issue a criminal summons instead of a warrant. The district attorney general may direct the clerk to issue either a criminal summons or a warrant. More than one warrant or criminal summons may issue on the same complaint. If a defendant fails to appear in response to the criminal summons, a warrant shall issue. The issuance of every warrant and summons in each county shall be recorded forthwith in a docket book kept by the clerk for the Court of General Sessions.
(b) Probable Cause. The finding of probable cause shall be based upon evidence, which may be hearsay in whole or in part provided 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.
(1) Warrant. The arrest warrant shall be signed by the magistrate or clerk, shall contain the name of the defendant or, if the name is unknown, any name or description by which the defendant can be identified with reasonable certainty, and shall show the county in which the warrant was issued. It shall describe the offense charged in the affidavit of complaint. It shall command that the defendant be arrested and brought before the nearest appropriate magistrate of the county from which the warrant for arrest issued.
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:
(A) The appropriate clerk or magistrate shall fix the amount of bail to be required and shall set it forth on the face of the warrant; and
(B) The sheriff of the county in which the arrest is made or his or her deputy 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. s 40-1206.
(2) Summons. The criminal summons shall be in the same form as the warrant except that it shall summon the defendant to appear before a magistrate at a stated time and place.
(d) Execution or Service; and Return.
(1) By Whom. The arrest warrant shall be executed by an officer authorized by law. The criminal summons may be served by any 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 county within this state.
(3) Manner. The arrest warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in the officer's possession at the time of the arrest, but upon request shall show the warrant to the defendant as soon as possible. If the officer does not have possession of the warrant at the time of the arrest, the officer shall then inform the defendant of the offense charged and of the fact that a warrant has been issued. The criminal summons shall be served in the same manner as a summons in a civil action.
(4) Return; Reissuance. The officer executing a warrant shall make return thereof to the magistrate or clerk or other officer before whom the defendant is brought pursuant to Rule 5. At the request of the district attorney general any unexecuted warrant shall be returned to the magistrate or clerk by whom it was issued who shall cancel it. On or before the return day the person to whom a criminal summons was delivered for service shall make return thereof to the magistrate or clerk before whom the summons is returnable. At the request of the district attorney general made at any time while the affidavit of complaint is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved or a duplicate thereof may be delivered by the magistrate or clerk to any authorized person for execution or service.
[Amended effective August 1, 1979.]
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.
The final sentence of section (a) 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."
Rule 4 was substantially derived from the corresponding federal rule and §§40-701 et seq. 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 Chapter 882, Public Acts 1978, effective April 13, 1978, setting new limits on the issuance of arrest warrants for violation of support orders.
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. Arrest warrants have historically made no such distinction in Tennessee. See T.C.A. §40-707. 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.