When can a Tennessee officer custodially arrest someone for a misdemeanor instead of issuing a citation?

Plain-English summary

Representative Larry Miller asked the AG to clarify two of the eight statutory exceptions that let an officer custodially arrest a misdemeanor suspect instead of issuing a citation. First, does a "failure to satisfy" entry on a driver's license history (an old unpaid traffic ticket) automatically prove a "reasonable likelihood" that the suspect will skip court? Second, does a prior conviction for the same offense automatically mean the offense will continue or resume?

AG Robert E. Cooper, Jr. answered both questions with the same framework: there is no automatic answer. Tennessee Supreme Court precedent (State v. Walker) requires that any custodial arrest in lieu of citation be supported by "objectively reasonable" facts known to the officer at the time. A single old "failure to satisfy" notation, sitting alone on a license history, would not justify arrest; a pattern of repeated nonpayment or no-shows could. As for the second question, the AG was more categorical: a prior conviction by itself is not an objectively reasonable basis to predict that a new offense will continue or resume. The continuation exception, the AG said, is for offenses like driving on a revoked license or active assaults, where the criminal conduct will literally keep happening if the suspect is not removed. It is not a license to arrest based on a record check showing past convictions.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What are the eight exceptions in 2010?
A: The cite-and-release statute required citation unless: (1) the arrestee needed medical care or could not care for their own safety; (2) the offense would continue or resume, or persons or property would be endangered; (3) the arrestee could not or would not provide satisfactory ID, including a fingerprint if the officer required one; (4) custodial arrest was needed to protect prosecution of this or another offense; (5) the arrestee was reasonably likely to fail to appear; (6) the arrestee demanded a magistrate or refused to sign the citation; (7) the arrestee was so intoxicated they were a danger; or (8) outstanding arrest warrants existed.

Q: Where did the "objectively reasonable" test come from?
A: From State v. Walker, 12 S.W.3d 460 (Tenn. 2000), the Tennessee Supreme Court. Walker involved a defendant who was cited for a noise ordinance violation, gave the officer his name, date of birth, and license number, and offered to walk two blocks to get his wallet. The officer arrested him anyway under the "satisfactory ID" exception. The Supreme Court held that the prosecution must prove it was objectively reasonable for the officer to reject the ID offered, and ruled the arrest illegal. The opinion extended the same standard to all eight exceptions.

Q: Why does the standard matter?
A: A custodial arrest lets the officer search the arrestee incident to arrest. If the arrest was unjustified under the cite-and-release statute, the search is illegal and any evidence found has to be suppressed. That was the actual issue in Walker, the officer's bad arrest call also voided a drug discovery.

Q: When does a "failure to satisfy" justify a custodial arrest?
A: The AG suggested a fact-intensive review: how many notations, how recent, did they result from missing court or just from not paying a fine that was already imposed at a court appearance? A single old entry from a long-since-paid ticket would not. A pattern of repeated no-shows on traffic citations might.

Q: What about the continuation exception?
A: The opinion limited it sharply. It applies when leaving the suspect with a citation means the offense literally continues, like a person caught driving on a suspended license who would have to drive away to leave, or someone in the middle of an active assault. It does not apply to a shoplifter who has previous shoplifting convictions, because any future shoplift would be a new offense, not a continuation.

Q: What does the officer have to document?
A: Tenn. Code Ann. § 40-7-118(j) required the officer to note on the arrest ticket the specific reason a citation was not issued, based on facts reasonably known or believed at the time of arrest. That paper trail is what the prosecution would later have to defend if the arrest was challenged.

Background and statutory framework

Tennessee adopted its "cite and release" statute to reduce the number of misdemeanor arrestees taken into custody for low-level offenses. Tenn. Code Ann. § 40-7-118 created what the Tennessee Supreme Court called a "presumptive right to be cited and released" for an in-presence misdemeanor. Custodial arrest became the exception, and the prosecution carries the burden of proving an exception applies if the arrest is later challenged.

The statute lists eight discrete grounds for departure from the default. The legislative design is two-step: the officer must (a) believe one of the eight conditions exists, and (b) record that reason on the arrest ticket. Walker added the constitutional gloss: the officer's belief, while it can rest on the totality of the circumstances at the time, must be objectively reasonable, not just subjectively held in good faith. The opinion in 10-31 applied that gloss to two recurring scenarios that officers face often: stale failure-to-appear records and same-offense priors.

The 2000 Tywan Faulk case the opinion cited illustrates the narrow reading of the continuation exception. Faulk was arrested for driving on a revoked license; the court approved the custodial arrest because if the officer merely cited him, "the appellant would have little choice but to drive away in continuing violation of the law." That logic does not transfer to property crimes like shoplifting where the next offense, if any, would be a separate event in the future.

Citations and references

Statutes:

• Tenn. Code Ann. § 40-7-118 (cite and release)
• Tenn. Code Ann. § 40-7-103(a)(1) (warrantless arrest authority)

Cases:

• State v. Walker, 12 S.W.3d 460 (Tenn. 2000) (Tennessee Supreme Court): "objectively reasonable" test for cite-and-release exceptions
• State v. Tywan Faulk, No. M1999-01124-CCA-R3-CD, 2000 WL 1278375 (Tenn. Crim. App. 2000) (Tennessee Court of Criminal Appeals): continuation exception applied to driving on revoked license

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-031.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

March 11, 2010

Opinion No. 10-31

Exceptions for Citations Under Tenn. Code Ann. § 40-7-118

QUESTIONS

1. According to Tenn. Code Ann. § 40-7-118, a person shall be issued a citation for a misdemeanor that occurred in an officer's presence unless one of eight exceptions applies. One exception is if "a reasonable likelihood exists that the arrested person will fail to appear in court." Tenn. Code Ann. § 40-7-118(c)(5). Does a "failure to satisfy traffic citation" entry on the arrested person's driver's license history or criminal history in connection with a previously charged offense constitute a reasonable likelihood that he or she will fail to appear in court?

2. Another exception applies if "a reasonable likelihood exists that the offense would continue or resume, or that persons or property would be endangered by the arrested person." Tenn. Code Ann. § 40-7-118(c)(2). Does a prior conviction appearing on the misdemeanant's criminal history for the same offense that is the subject of a current arrest constitute a reasonable likelihood that the current arrest offense would continue or resume?

OPINIONS

1. The legality of a custodial arrest rather than issuance of a citation under the circumstances you describe will depend upon whether it was objectively reasonable for the officer effecting the arrest to determine that the exception applied based on the information available to him at the time.

2. No. The use of a prior conviction to conclude that the arrestee is likely to commit the same offense in the future is not objectively reasonable.

ANALYSIS

By statute, officers are authorized to arrest without a warrant when they observe an individual committing a public offense or a breach of the peace. Tenn. Code Ann. § 40-7-103(a)(1). With regard to misdemeanors, Tennessee has adopted a "cite and release" statute that requires an officer to cite and release the misdemeanant rather than effect a custodial arrest. Tenn. Code Ann. § 40-7-118(b)(1) provides in part:

A peace officer who has arrested a person for the commission of a misdemeanor committed in the peace officer's presence ... shall issue a citation to the arrested person to appear in court in lieu of the continued custody and the taking of the arrested person before a magistrate.

Such person may not be placed under custodial arrest unless one of eight exceptions is applicable:

(1) The person arrested requires medical examination or medical care, or if the person is unable to care for the person's own safety;
(2) There is a reasonable likelihood that the offense would continue or resume, or that persons or property would be endangered by the arrested person;
(3) The person arrested cannot or will not offer satisfactory evidence of identification, including the providing of a field-administered fingerprint or thumbprint which a peace officer may require to be affixed to any citation;
(4) The prosecution of the offense for which the person was arrested, or of another offense, would thereby be jeopardized;
(5) A reasonable likelihood exists that the arrested person will fail to appear in court;
(6) The person demands to be taken immediately before a magistrate or refuses to sign the citation;
(7) The person arrested is so intoxicated that the person could be a danger to the person's own self or to others; or
(8) There are one (1) or more outstanding arrest warrants for the person.

Tenn. Code Ann. § 40-7-118(c). Thus, the "cite and release" statute creates a presumptive right to be cited and released for the commission of a misdemeanor. State v. Walker, 12 S.W.3d 460, 464 (Tenn. 2000). In order to validate a custodial arrest for a misdemeanor, the prosecution bears the burden of proving the existence of one of the eight exceptions. Id. at 465. Furthermore, the statute mandates that, if an officer determines that a citation cannot be issued because of one of the eight exceptions, the officer must note the reason for not issuing a citation on the arrest ticket. Tenn. Code Ann. § 40-7-118(j). Subsection (j) also provides that an officer must make his decision regarding custodial arrest based on the "facts reasonably known or reasonably believed to exist" at the time of the arrest.

In Walker, the defendant was issued a citation for violating a city noise ordinance but did not have any identification on his person. The defendant gave the officer his name, date of birth and driver's license number and offered to take the officer to his mother's home two blocks away to get his wallet. Even though the officer verified the information given by the defendant, the defendant was taken into custody because "he could not offer satisfactory evidence of identification." Conducting a search incident to the custodial arrest, the officer found marijuana and cocaine. On the issue of what is satisfactory evidence of identification, the Tennessee Supreme Court adopted a test requiring the prosecution to prove that it was objectively reasonable for the officer to reject the evidence of identification given by the defendant, and held that the reasonableness of the officer's decision must be determined on a case-by-case basis. Applying the standard to the facts of the case, the court concluded that the custodial arrest in lieu of a citation was not justified and, therefore, that the search incident to the arrest was illegal.

It is the opinion of this Office that the "objectively reasonable" test adopted in Walker for determining the applicability of the identification exception to the cite and release statute would likewise be used to determine the applicability of any other exception to the statute. Accordingly, when a custodial arrest made in lieu of citation is challenged, the State has the burden to prove that the officer's decision to arrest was objectively reasonable. The officer must have specific articulable reasons to support invoking the exception to cite and release. The inquiry would necessarily be fact intensive, and resolution will depend on the circumstances and information known to the officer at the time of the arrest.

Turning to the specific questions you raise: in the case of an arrestee with a "failure to satisfy" on his driver's license history, the analysis would turn on facts such as whether the record entry resulted from a failure to pay a fine imposed by the court at a court appearance or from a fine imposed by default upon the defendant's non-appearance in court, the length of time since the entry of the notation, and the number or frequency of such entries. A custodial arrest based on a single "failure to satisfy" notation entered several years before the present arrest likely would not provide an objectively reasonable basis for an officer to determine that the misdemeanant will not appear in court if cited. Conversely, a custodial arrest may be justified under this exception if the person has a history of frequently failing to pay fines imposed by the court or failing to appear as directed by previous traffic citations. The outcome of any particular case would turn on its individual facts and circumstances.

Addressing your second question, it is the opinion of this Office that a custodial arrest is not appropriate when the arrestee has a prior conviction for the same misdemeanor offense as the one for which he or she is currently being arrested. The fact that the arrestee has a criminal history does not, without more, support a determination that the offense would continue or resume, or that persons or property would be endangered unless a custodial arrest is made. This exception to cite and release has been applied only in situations such as driving on revoked, suspended, or cancelled license or driving under the influence, where the same offense would continue or resume if the person is not taken into custody. See, e.g., State v. Tywan Faulk, No. M1999-01124-CCA-R3-CD, 2000 WL 1278375 (Tenn. Crim. App. 2000) ("In this case, because the offense was driving on a revoked license, if [the officer] merely cited the appellant, the appellant would have little choice but to drive away in continuing violation of the law.") This exception also could be applied to situations where the arrestee is assaulting someone or damaging property and must be removed from the scene to prevent resumption of the criminal conduct. In the example you give of a shoplifter who has a prior conviction for shoplifting, a custodial arrest could not likely be justified merely on the basis of the arresting officer's prediction of the person's propensity to steal in the future. Our courts are unlikely to find such a determination to be reasonably objective. The person's future criminal acts would be new offenses, not a continuation or resumption of the shoplifting offense for which he is being cited and released.

ROBERT E. COOPER, JR.
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

RACHEL E. WILLIS
Assistant Attorney General

Requested by:
The Honorable Larry Miller
State Representative
20 Legislative Plaza
Nashville, TN 37243