Original Author: Hemsley, Sid
Date of Material: 02/18/1993
Reviewed Date: 07/20/2021
MTAS was asked whether the city judge (who has concurrent jurisdiction) can issue a state warrant for a person who passes a school bus, upon the affidavit of the school bus driver, who doesn't know who was driving the car and whether a video tape of persons arrested for DUI is admissible at trial of the defendant.
- Can the city judge (who has concurrent jurisdiction) issue a state warrant for a person who passes a school bus, upon the affidavit of the school bus driver, who doesn't know who was driving the car?
- Is a video tape of persons arrested for DUI admissible at trial of the defendant?
The answer to the first question depends upon whether the school bus driver can provide a sufficient description of the driver of the car to satisfy the Fourth Amendment to the U.S. Constitution, Tennessee Code Annotated, § 40-6-208 and Rule 4 of the Tennessee Rules of Criminal Procedure.
The Fourth Amendment to the U.S. Constitution provides that:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. [Emphasis is mine]
In addition, among the contents of arrest warrants required under Tennessee Code Annotated, § 40-6-208 is that, "The warrant should specify the name of the defendant, but if it be unknown to the magistrate, the defendant may be designated in the warrant by any name." Rule 4 (c)(1)(B) of the Rules of Criminal Procedure expands on that statute by providing that, "The arrest warrant shall . . . contain the name of the defendant, or if this name is unknown, any name or description by which the defendant can be identified with reasonable certainty . . ." [Emphasis is mine]
Rule 4 reflects the United States Supreme Court's holding in West v. Cabell, , 14 S.Ct. 752, 38 L.Ed. 643 (1894). In that case, an informant told a deputy U.S. Marshal that "James West" murdered Cameron in Arkansas a year earlier and was now living in Mineral Wells, Texas. The informant also gave the deputy U.S. marshal a physical description of West. The deputy U.S. marshal sent that information, including the description, to the Commissioner of the United States Circuit Court for North Texas. The commissioner issued a warrant for the arrest of James West, but didn't include the description of him. The deputy U.S. Marshal arrested a "Vandy West" near Mineral Wells, Texas, who fit the description he had of West (but which was not on the warrant). Vandy West loudly protested his innocence.
Vandy West spent several weeks in jail until the informant was brought to confront him. When the informant said, in essence, "Boy's you got the wrong man," Vandy West was released. He sued the U.S. marshal and deputy U.S. marshal on their bonds, alleging his arrest was unconstitutional. The U.S. Supreme Court agreed with him, declaring that:
By the common law, a warrant for the arrest of a person charged with a crime must truly name him, or describe him sufficiently to identify him....The principle of the common law, by which warrants of arrest, in cases criminal or civil, must specifically name or describe the person be arrested, has been affirmed in the American Constitutions; and by the great weight of authority in this country a warrant that does not do so will not justify the officer making the arrest.
The defendant's true name or a description sufficient to identify him must appear on the face of the warrant, concluded the Court.
West is still the law in the United States, and the foundation of every case on the adequacy of the description in John and Jane Doe warrants, and warrants which contain an incorrect name. Although surprisingly few, those cases indicate two things:
- judges need be extremely cautious about issuing such warrants, absent a solid description of the person named in the warrant
- the description must appear on the face of the warrant.
Although there are no Tennessee state cases in this area, United States v. Swanner, 237 F. Supp. 69 (E.D. Tenn. 1964) involves a challenge to the sufficiency of the description of the defendant in a warrant issued for his arrest in the U.S. District Court for the Eastern District of Tennessee. The federal tax officer who obtained the warrant wasn't sure of the name of the man who had sold him untaxed liquor in an undercover operation, but thought his name might be "Bud Fergeson." The warrant described the person to be arrested as "John Doe alias Bud Fergeson," but contained no further description of the defendant. The same federal tax officer also executed the warrant and because of his previous dealings with the defendant knew precisely to whom the warrant applied even without a correct name or description on the face of the warrant.
Unfortunately for the officer, "Bud Fergeson's" correct name turned out to be "Clarence Swanner," and there was no evidence he had ever used or been known by another name. Relying on West, the Court held the warrant invalid. It wasn't enough that the person issuing or executing the warrant knew to whom it applied, the test of the warrant's validity was the adequacy of the description of the person on its face.
But Swanner doesn't give us any guidance as to what constitutes an adequate description of a person named on a John or Jane Doe warrant. Other cases do so, although they aren't completely consistent. They include both John and Jane Doe warrants and warrants where the name of the person is incorrect or uncertain.
In United States v. $1.058 in United States Currency, 210 F.Supp. 45 (W.D. Pa. 1962), a John Doe warrant was found adequate where the affidavit described the defendant as "a white male called 'Piggy,' 5'7" tall, dark complected, weighing 125 to 140 lbs. with dark hair." A John Doe warrant that described the defendant as a "white male, about 45 to 48 years of age, about 5'8" tall, about 160 to 170 lbs., long nose, sharp features, frequently observed driving black and beige Buick Sedan, Mass. Reg. X2194" was found sufficient in United States v. Interbartolo, 192 F.Supp. 587 (1961). A warrant issued for a "Robert Curry" was also found valid by the Arkansas Supreme Court in McCoy v. State, 259 Ark. 607, 535 S.W.2d 439 (1976) even though the real name of the defendant was "Nolan McCoy," because the warrant contained McCoy's correct address, and correctly stated his nickname was "Monk."
However, a warrant issued for "John Doe, white male adult, 30 to 35 years, 5'10" 175 lbs. dark hair, medium build," was held to be inadequate by the California Court of Appeal, First District, in People v. Montoya, 63 Cal. Rptr. 73 (1967). The Court reasoned that:
The weight of authority holds that to meet the constitutional requirements, a "John Doe" warrant must describe the person to be seized with reasonable particularity. The warrant should contain sufficient information to permit his identification with reasonable certainty. [Citations omitted] This may be done by stating his occupation, his personal appearance, peculiarities, place of residence or other means of identification. [Citations omitted] Where a name that would reasonably identify the subject to be arrested cannot be provided, then some other means reasonable to the circumstances must be used to assist the identification of the subject of the warrant.... The authorities agree that the constitutional requirement is not met where only characteristics of age, weight, height and race are mentioned. Although the warrant here also indicated that the person to be seized had dark hair, we think it was nevertheless too general a description. It could be applied to a great number of persons in a city the size of Oakland. Accordingly, we hold that the description of the defendant did not meet the constitutional requirement, and the warrant was void for that reason.
Similarly, in Bozeman v. City of Buffalo, 62 Misc. 2d 967, 310 N.Y.S.2d 814 (Sup.Ct. 1969) it was held that a John Doe warrant that contained no description of the defendant was invalid. The John Doe warrant must contain "the very best description possible" of the suspect. That description could include "his appearance, occupation, residence and any other circumstances through which he could be identified." The arrest of a Houston, Texas, woman four blocks away from the target of a search and arrest warrant was invalid where the warrant was for an "unknown black female," in Visor v. State, 660 S.W. 2d 816 (Tex.Cr.App. 1983). In that case the Court gave some clue as to what would have been an adequate description in the warrant, by saying that:
Officer Lyles testified the only description the officers had was that in the warrant an "unknown black woman," which was the only description given by the unnamed confidential informer, mentioned in the search warrant affidavit. There was nothing to show the name, approximate age, weight, size, distinguishing characteristics, etc. of the woman supposedly in charge of the premises. There does not appear to have been any effort to determine who owned or leased or rented the premises, or in whose name the utilities were listed.
Among the cases involving a wrong name on an arrest warrant is the fantastic Powe v. City of Chicago, 664 F.2d 639 (1981). In February, 1972, Powe was the victim of an armed robbery by Brooks, who took, among other things, Powe's wallet containing his identification. Two years later Brooks was arrested for another crime. Using Powe's identification, Brooks plead guilty and was sentenced to two years probation! He violated probation, and, a warrant was issued for "Andrew Powe, a/k/a Ernest Brooks." On November 25, 1975, the hapless Powe was stopped for a minor traffic offense, and a routine computer check displayed the arrest warrant. Needless to say, Powe spent the night in jail, until he could post bond. His case was subsequently continued by the trial court to permit the prosecutor to confirm his story. A month later, the snafu was cleared up, and Powe was a free man.
Or so he thought. Three months later the same thing happened again! He spent another night in jail. The next day a probation department employee, who had a picture of Brooks, told the Chicago police department it had the wrong man. Nevertheless, the police department still refused to release him until "many hours later."
Powe sued the City of Chicago following his second arrest. But his travails were not over. He was arrested on the same warrant twice more, once in January, 1977, when he went to pay some overdue traffic fines, and again in November, 1977, when he was stopped for not having a city sticker on his car!
Among Powe's many claims against the City of Chicago was a claim that both the warrant that led to his first arrest, and the warrant that was reissued following his first arrest, contained an inadequate description of the person to be arrested. The U.S. Court of Appeals for the Seventh Circuit agreed with him. Said the Court:
An arrest warrant that correctly names the person to be arrested generally satisfies the fourth amendment's particularity requirements, and no other description of the arrestee need be included in the warrant. [Citation omitted.] On the other hand...an arrest warrant that incorrectly names the person to be arrested will usually be deemed insufficient to meet the fourth amendment's particularity requirement unless it includes some other description of the intended arrestee that is sufficient to identify him.
The requirement for a solid description of the person named in the arrest warrant found in Powe unquestionably applies to John and Jane Doe warrants as well as to warrants in which the name of the person to be arrested is wrong or uncertain.
It would be extremely difficult for a warrant for the arrest of a person who passed a school bus to meet the Montoya and Bozeman standards, and in most cases to meet the lesser standards of the other cases cited. Pinning down a good description of who is driving the car that passed the school bus seems a difficult proposition under the best of circumstances. I'm not sure how good a description of the driver the Tennessee courts would require. Most of the above cases involved serious crimes, yet the courts required the warrants on their faces to meet the West standard: "truly name him or describe him sufficiently to identify him." I suspect the courts would require as much, perhaps more, of a warrant for the passing of a school bus, which is a misdemeanor offense. [See Tennessee Code Annotated, § 55-8-151.]
The description of the offender would probably have to meet a high standard for detail. The license plate number of the offender's car would probably enhance the description, but it wouldn't support a vague description of the offender. An affidavit containing a description of, say, "a white male driving a 1991 Chevy, License No. ZPC-462" probably wouldn't be a sufficient description under any of the above cases. The obvious problem is that in most places, such a description would fit any number of men who could have, for whatever reason, been driving the car.
Here it's necessary to point out once again, that the warrant has to be valid upon its face. The city might obtain information after the arrest showing that the person arrested was indeed the driver of the car that passed the school bus. However, that information would do nothing whatever to bolster the validity of the warrant upon its face.
The Tennessee Rules of Evidence, Rule 1001 specifically contemplates the use of videotapes as evidence. Subsection (2) includes in the definition of "Photographs,""still photographs, x-ray films, videotapes, and motion pictures."
The absolutely overwhelming weight of authority in the United States supports the admission of videotaped evidence in criminal trials, including DUI trials. Challenges to the admission of such evidence on a variety of constitutional grounds have been repeatedly rejected. Generally, the admission of such evidence is based upon the rules governing the admissibility of photographs, or motion pictures. [For an excellent annotation on the subject see 60 ALR3d 333.] As with other those and other kinds of evidence, the judge has discretion relative to its admission, but generally, assuming a proper foundation has been laid by the prosecutor, there should be few reasons today why tapes of DUI offenders wouldn't be admitted.
If the court has a specific objection to the use of such evidence, let me know what is and I will attempt to address it.
Sidney D. Hemsley
Senior Law Consultant