In the state of Tennessee an officer who has probable cause to believe an offense has been committed may arrest a person without a warrant in eleven different circumstances.ⁱ However, in the case of many misdemeanors, Tennessee has adopted by statute a presumptive right to be issued a citation in lieu of continued custody of an arrested person unless specific delineated circumstances are present or the arrest is for specific offenses.ⁱⁱ This article will examine why some offenses may be eligible for citation in lieu of arrest, which misdemeanors are eligible for citation, which circumstances may arise which allow an officer to perform a custodial arrest for a normally citable offense, and what remedy may be available if an officer performs a custodial arrest when a citation should have been issued.

Why Are Some Offenses Eligible for Citation in Lieu of Arrest?

The legislature lays out the purpose behind cite-and-release in the plain text of the statute. The legislature intended cite-and-release to apply to cases where: the public would not be endangered by the continued freedom of the suspectⁱⁱⁱ; the officer has reasonable proof of the identity of the suspect^iv; and there is no reason to believe the suspect will fail to appear in court^v. The legislature goes on to state that the issuance of a citation in lieu of arrest will save on costs and allow for increased public safety by reserving jail space for dangerous people and felons, and by allowing police officers to stay out on patrol rather than spend time taking misdemeanants into custody.^vi

Which Misdemeanors are Eligible for Citation?

The cite-and-release statute establishes misdemeanors for which a citation shall be issued in lieu of custodial arrest^vii, and misdemeanors for which a citation may be issued in lieu of custodial arrest^viii. The distinction between shall and may is important, as the word shall is compulsory and requires the action, whereas the word may allows the officer to use their discretion in deciding to issue a citation or place the suspect under custodial arrest. Offenses for which an officer may issue a citation include shoplifting^ix, issuance of bad checks^x, use of a suspended or revoked driver’s license^xi, assault or battery (may not issue citation if officer believes persons would be endangered by arrested person if citation issued)^xii, and prostitution (may not issue citation if officer has knowledge of defendant’s past conduct of prostitution and believes defendant will continue to engage in prostitution)^xiii. All other misdemeanors, with the exception of DUI and traffic-citable offenses, must be issued a citation in lieu of arrest unless specific circumstances are involved.

What Circumstances May Allow An Officer to Conduct a Custodial Arrest for a Usually Citable Offense?

The cite and release statute allows an officer to place a suspect under custodial arrest for a usually citable offense in nine circumstances. These circumstances are: instances where the suspect requires medical attention or is unable to care for their own safety^xiv; instances where there is a reasonable likelihood the offense would continue or resume, or that persons or property would be endangered by the arrested person^xv; the person arrested cannot or will not offer satisfactory evidence of identification^xvi; instances where the prosecution of the offense for which the person was arrested, or another offense, would be jeopardized^xvii; there is a reasonable liklihood that the arrested person would fail to appear in court^xviii; the arrested person demands to be taken immediately before the magistrate or refuses to sign the citation^xix; the person arrested is so intoxicated that the person would be a danger to themselves or others^xx; there are outstanding arrest warrants for the person^xxi; the person is subject to arrest due to being involved in an accident involving serious injury or death and not having a valid license or insurance^xxii. The inclusion of terms like “reasonable likelihood” and “satisfactory evidence” give the officer some discretion to determine whether a custodial arrest is permitted, but if the officer does make a physical arrest for one of those reasons they must note on the arrest ticket which specific reason necessitated conducting a custodial arrest^xxiii.

What Remedy is Available if the Cite-and-Release Statute is Violated?

Since there is no mention of remedy in the statute, we must look to the courts for guidance as to what remedy is available for a defendant who is placed under custodial arrest when a citation should have been issued. It is noted by the Court of Criminal Appeals in a footnote to State v. Christie^xxiv that there is no case which supports the proposition that an officer’s non-compliance with the citation provisions of 40-7-118(b)(1) voids the entire arrest. However, the state supreme court has held that evidence obtained as a result of a search following a custodial arrest in violation of the cite-and-release statute should be suppressed^xxv. As noted by the opinion in Christie, “the remedy for a violation of Tennessee Code Annotated section 40-7-118 is not to void the arrest for the crime which was committed in the officer’s presence; rather, the remedy is to void the custodial aspect of the arrest and suppress any evidence gained as a result of the custodial seizure.”^xxvi

Conclusion

Under Tennessee law many misdemeanor offenders may be eligible to receive a citation rather than be taken into custody by an officer. The legislature has determined that citation is preferable to arrest in many instances due to the reduction of cost and increase in public safety promoted by citation. However, even a usually citable offense may necessitate a custodial arrest if circumstances allow for it. In the event of a wrongful custodial arrest where a citation should have been issued the original arrest will stand, but any evidence gathered as a result of that custodial arrest will be suppressed.