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Municipal Technical Advisory Service (MTAS)

Original Author: Bingham, Pamela
Date of Material: 10/26/1999

Police--Arrest procedure
Police--Laws and regulations

Authority to Issue Arrest and Search Warrants

Reviewed Date: 07/26/2021
MTAS was asked who may legally issue a search or arrest warrant.

I am writing in response to your question as to who may legally issue a search or arrest warrants. I have researched this issue and found several statutes and attorney general opinions addressing the authority to issue search warrants.

First, by way of background information, a search warrant, which commands a peace officer or sheriff to search for personal property, can only be lawfully issued on probable cause that a crime has been committed, and must be supported by an affidavit. In other words, there must be reasonable grounds for suspicion that an illegal act has been committed. By state law, generally a "magistrate" has the power to issue a search warrant. T.C.A. § 40-1-106 and § 40-1-111. A judicial commissioner may also be known as magistrate. See generally T.C.A. §§ 40-1-106; 40-1-111; 40-5-101. As explained in Op. Tenn. Atty. Gen. 84-228, T.C.A. § 40-1-101 states that a search warrant must be "signed by a magistrate." The term "magistrate" actually refers to a class of individuals who are authorized to perform certain functions, and therefore can be any number of different officials. While not exhaustive, this list includes:

1) judicial commissioners
2) county executives
3) judges of the appellate, circuit, general sessions courts
4) city judges
5) judges of juvenile courts

T.C.A. § 40-5-102. See also T.C.A. 40-1-106

Indeed, the Attorney General has opined that appointed (and elected) city judges may lawfully perform magistrate functions, such as issuing warrants (search and arrest) and binding over defendants charged with state felonies and misdemeanors. Op. Tenn. Atty. Gen. No. 93-29. (April 1, 1993).

You had also requested if a city recorder or a mayor is empowered to issue warrants. While it is my view that one examining evidence and deliberating over a finding of probable cause should be an individual who has a legal background and can remain neutral, it is true that a number of private act charters in Tennessee give authority to allow a mayor or the recorder to issue a warrant within the city limits.

In addition, T.C.A. § 6-54-401, denominated "Officers and employees; enforcement duties," speaks to the general duty of various officers to "have arrested and arraigned for trial" those who are alleged to commit an offense:

It is the duty of the mayors, commissioners, council members, aldermen, chiefs of police, recorders, municipal judges, marshals, and police officers of each municipal corporation, to faithfully maintain and enforce, within the corporate limits of their respective municipalities, the statute laws relating to lewdness, drunkenness, gaming, and the sale and manufacture of intoxicating liquors, by having arrested and arraigned for trial all persons violating such laws with their knowledge, and by taking such other proceedings against such violators as may be authorized and provided by the ordinances of such municipalities.(emphasis added).

In addition, the Tennessee Attorney General opined in Opinion No. 97-093 states that a magistrate is not required to be a licensed attorney in order to issue a search or arrest warrant.In addition, Op.Tenn. Atty. Gen. No. 97-093 concludes that a judicial commissioner acting as a magistrate is not required to be a licensed attorney in order to issue a search (or arrest) warrant:

In State v. Bush, 626 S.W.2d 470, 473 (Tenn. Crim. App. 1981), the Court of Criminal Appeals held that determinations of probable cause may be made by an appointed "magistrate," and need not be conducted by an elected lawyer or judge. The only requirements for the party who determines probable cause are that he or she be "neutral and detached," and "be capable of determining whether probable cause exists." Bush, 626 S.W.2d at 473 (citing Shadwick v. City of Tampa, 407 U.S. 345, 92 S. Ct. 2119, 32 L. Ed.2d 783(1972)).

By way of additional information, I am also including another opinion from the Attorney General addressing appointed city court judges performing magistrate functions as well as the general authority of municipal court judges. Op. Tenn. Atty. Gen. 95-020.

With respect to your second question as to whether the deputy court clerk who also is employed by county sheriff's department, there is authority to support my conclusion as we discussed this morning - that is, that such an individual can not issue warrants from the Municipal Court. First, the Bush case cited previously stresses that an individual must be "neutral and detached" in order to deliberate on a determination of probable cause. Since your deputy clerk is employed also by the sheriff's department, which is a law enforcement entity, it would be difficult if not impossible for such an individual to remain "neutral and detached." Op. Tenn. Atty. Gen. No. 90-07 is on point in this matter in that the Attorney General concluded that "a deputy general sessions court clerk who is also a full-time deputy sheriff, but whose sole duty as deputy sheriff involves only civil process, is not a 'neutral or detached' magistrate or clerk for the purpose of taking from law enforcement officers affidavits of complaint necessary for the issuance of arrest warrants or criminal summonses." Based on the above authorities it is clear that your deputy court clerk should not issue arrest and search warrants.