January 7, 2004
Dear Chief of Police:
The MTAS general consultant for your City, asked me the following question: Can the
city judge sign a search warrant? I assume this question applies to search warrants in state cases.
City judges apparently have the authority to issue arrest warrants in state cases, but it is
not clear whether they have the authority to issue search warrants in state cases. However, I
strenuously advise the city judge not to issue either arrest or search warrants in state cases unless
the attorney general approves that practice.
In Article 4, ' 3 of the Municipal Charter, the city judge is vested with both municipal
ordinance violation jurisdiction and jurisdiction concurrent with that of courts of general
sessions. However, after State v. Barrett, 840 S.W.2d 895 (Tenn. 1992), municipal court judges
vested with the latter jurisdiction must meet the qualifications of Article 6, ' 4, of the Tennessee
Constitution, and be elected for a term of eight years. Under Article 4, ' 1 of the Municipal
Charter, the city judge is elected for a four year term. Tennessee Code Annotated, ' 16-18-201,
provides in cases where a municipal charter gives a municipal judge concurrent jurisdiction, the
municipality in question can by ordinance provide for the proper election of the municipal judge.
I see nothing in the Municipal Code indicating that such an ordinance has been passed. For that
reason, I assume that the city judge does not exercise concurrent jurisdiction.
Two Tennessee Attorney General’s opinions in great detail address the question of
whether an appointed city judge can issue warrants in state cases: TAG 93-29 and 95-020. They
opine that such municipal judges are magistrates, and that the authority of magistrates includes
the authority to issue arrest and search warrants, and to perform other magisterial functions. The
language in those opinions suggest that the questions apply to municipal judges who exercise
concurrent jurisdiction with courts of general sessions. I have attached those opinions for your
review.
Tennessee Code Annotated, ' 40-1-106 defines which officials are magistrates: “The
judges of the supreme, appellate, chancery, circuit, general sessions and juvenile courts
throughout the state, judicial commissioners and county executives in such officers’ respective
counties, are magistrates within the meaning of this title.” That definition does not include
municipal judges. However, Tennessee Code Annotated, ' 40-5-101defines the term
“Magistrate,” as follows: “A magistrate is an officer having power to issue a warrant for the
arrest of a person charged with a public offense.” Then Tennessee Code Annotated, ' 40-5-102
January 7, 2004
Page 2
provides that: “The following are magistrates within the meaning of this part: ....(5) City judges
in cities and towns.” On its face, then, “this part,” apparently makes city judges (whether or not
they exercise concurrent jurisdiction) magistrates for the purpose of issuing arrest warrants, but
does not necessarily make them magistrates for the purpose of issuing search warrants.
In U.S. v. Scott, 260 F.3d. 512 (6th Cir. 2001), the U.S. Sixth Circuit Court of Appeals,
the circuit in which Tennessee is located, held that a search warrant issued by a retired judge was
invalid, because retired judges were not defined as magistrates by Tennessee Code Annotated, '
50-5-102. The Court did not mention the fact that Tennessee Code Annotated, ' 40-5-102
defines who are magistrates for the purpose of issuing arrest warrants. Had the judge in that case
currently held office, presumably even the office of a city judge, the Court apparently would have
declared the judge a magistrate under that statute, and upheld his issuance of the search warrant.
The Tennessee Rules of Criminal Procedure (T.R.Crim.P.) also speak about the authority
and duties of magistrates. Rule 40 of the T.R.Crim.P. speaks about the issuance of search
warrants by “magistrates,” but does not define that term. Advisory Commission Comments to
Rule 1, of the T.R.Crim.P. declares that:
These rules apply in cases which are clearly criminal in nature,
including both misdemeanors and felonies. Procedures in purely
juvenile and municipal courts are not covered. The term General
Sessions Court, as used in these rules, includes all courts
exercising the jurisdiction of a General Sessions Court in State
criminal procedures, including:
(1) municipal courts having such jurisdiction by special legislative
enactment....
Rule 54(a) of the T.R.Crim.P. provides that, “These rules apply to all criminal
proceedings in all courts of record in Tennessee while exercising criminal jurisdiction. They
apply in General Sessions Courts and other inferior tribunals to the extent specified in Rule 1 or
when the context clearly so indicates.” Rule 54(a)(3) also defines “Magistrate:” “includes all
judges of courts of record in the state but is primarily intended to mean judges of courts of
general sessions.”
The T.R.Crim.P. do not appear to contemplate the issuance of search warrants by
municipal court judges who exercise only ordinance violation jurisdiction, but the determination
of who is a magistrate is probably answered by the above state statutes rather than the
T.R.Crim.P. As I have pointed out above, the statues denominating who are magistrates,
indicates that city judges are magistrates for the purpose of issuing arrest warrants, but not
necessarily for the purpose of issuing search warrants.
January 7, 2004
Page 3
But even if it were clear that municipal court judges with only ordinance violation
jurisdiction have the authority to issue arrest and search warrants in state cases, it appears to me
that they should be extremely cautious about exercising such authority. I suspect that in many
places in the state, the district attorneys general, and the judges having criminal jurisdiction
would object to such a city judge issuing arrest and search warrants. It seems advisable to me that
before the city judge issues arrest or search warrants in state cases, he should probably assume
that the same thing may be true with respect to the local district attorney general.
I would prefer to discuss with the city judge my reasons for that position, if he is
interested in hearing those reasons.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/