TN – State v Hirsch – Exploring the facts

Arthur Hirsch has provided additional documents which outline his arguments. I will try to outline why I believe his arguments fail.


On December 10, 2013, Hirsch was stopped by a TN Police Officer in a parking lot, and asked questions about his out-of-state license plates. While the full details are as yet unknown, it appears that the police officer asked for backup. When an officer asked Hirsch if he had any firearms, he admitted to have firearms in his vehicle. The officer wrote him several citations for traffic related issues as well as to the misdemeanor crime related to him carrying a firearm in his vehicle. In TN, officers may and in some cases must issue a citation and release the offender and there are various TN Statutes which outline under which circumstances citations are allowed and under which circumstances citations are required.

It is important to remember that a traffic stop does not count as a custodial arrest and therefor the officers were under no obligation to inform Hirsch of his Miranda rights. He voluntarily responded to inquiries that are clearly related to officer safety concerns although he now claims that he was under duress because of the threatening nature of having several police officers nearby.

In spite of the ‘cite and release’, Hirsch was arrested and taken in for booking. While again the details are not clear, I venture to guess, based on his Alabama case, that Hirsch refused to identify himself or that the officer believed that Hirsch may not show up at the hearing. Both are valid reasons that override the ‘cite and release’ statutes.

While in custody, the officer filed an affidavit of complaint with a Judge, following the requirements of Rule 3 of the Tennessee Rules of Criminal Procedure:

The affidavit of complaint is a statement alleging that a person has committed an offense. It must:

(a) be in writing;

(b) be made on oath before a magistrate or a neutral and detached court clerk authorized by Rule 4 to make a probable cause determination; and

(c) allege the essential facts constituting the offense charged.

Once the affidavit of complaint is filed, the judge may make a determination of probable cause. Since Hirsch claims that no arrest warrant was issued, it appears that the Judge allowed the citations to stand as they were. However, she also added a bail requirement for $10,000.

If indeed Hirsch was issued a citation or citations, then Rule 5, requiring that in absence of a warrant, the accused is brought before a magistrate for an initial appearance.

(a) In General.

(1) Appearance Upon an Arrest. Any person arrested–except upon a capias pursuant to an indictment or presentment–shall be taken without unnecessary delay before the nearest appropriate magistrate of:

(A) the county from which the arrest warrant issued; or

(B) the county in which the alleged offense occurred if the arrest was made without a warrant, unless a citation is issued pursuant to Rule 3.5.

The logical progress of Hirsch’s case under these circumstances would have been: Arraignment hearing followed by a preliminary (probable cause) hearing, after which the Judge may bind over the case. Note that there are two courts involved here: General Sessions court and Criminal Court.

There are 4 statutes which describe the use of citations

Four of those provisions generally permit law enforcement or judicial officers to issue a citation or a criminal summons for misdemeanor offenses in lieu of arrest under certain conditions. Tenn. Code Ann. §§ 40-7-118; 40-7-120; 40-6-205; 55-10-207. One of those conditions is that the person provide “satisfactory evidence of identification.” Tenn. Code Ann. §§ 40-7-118(c)(3); 40-7-120(k)(7); 40-6-205(b)(7).

Citations in lieu of continued custody/arrest TCA 40-7-118, and citations after arrest TCA 40-7-120. TCA 40-6-205 discusses criminal summons/warrants.

No arrest warrant therefor no Jurisdiction

That the record reveals that NO ARREST WARRANT was issued by JUDGE McGUIRE or magistrate following accused’s warrantless arrest on December 10, 2013 per mandatory statute Tennessee Rule of Criminal Procedure, Rule 4, i.e., there is no record in a docket book or on the Court Clerk’s computer showing the issuance of a warrant for accused’s arrest per Rule 4(a)(3) or showing that a warrant for accused was returned per Rule 4(e)(4)(A).

Hirsch argues that since there was no ARREST WARRANT issued, means that the court lacks jurisdiction to prosecute. , Arrest warrants are not the only way a court can gain jurisdiction over a person. Citations in lieu of continued custody are another way, as are indictments, presentments. So you may either have received a citation or a complaint and summons.

Rule 4 explains that the magistrate can issue an arrest warrant or summons:

(a) Issuance of Warrant or Summons. If the affidavit of complaint and any supporting affidavits filed with it establish that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the magistrate or clerk shall issue an arrest warrant to an officer authorized by law to execute it or shall issue a criminal summons for the appearance of the defendant. More than one warrant or criminal summons may issue on the same complaint.

However, there is also the possibility of issuance of a citation under T.C.A. § 40-7-118

(1)  “Citation” means a written order issued by a peace officer requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time. The order shall require the signature of the person to whom it is issued;

Also of interest State v Walker TN Supreme Court 2000

7.  Under Tenn.Code Ann. § 40-7-118 there are two types of arrests at issue.   The first type of arrest is the brief seizure and detention of an individual while the officer issues a citation.   See Tenn.Code Ann. § 40-7-118(b)(1) (1997);  see also People v. Bland, 884 P.2d 312, 316 n. 6 (Colo.1994);  People v. Superior Court of Los Angeles County, 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205, 1215 (1972).   The second type of arrest is described as “continued custody” of an already arrested individual.   Tenn.Code Ann. § 40-7-118(b)(1) (1997).   This continued custody of a person already arrested (subjected to a brief seizure and detention) is a custodial arrest.   See id.;   see also State v. Chearis, 995 S.W.2d 641, 643-44 (Tenn.Crim.App.1999).

The question remains: Why was Hirsch taken into custody even though he had been issued citations? And why was bail required?

There are exceptions:

(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;

(5)  A reasonable likelihood exists that the arrested person will fail to appear in court;

Were there concerns that Hirsch may not attend the arraignment hearing? To what extent did the Judge’s actions affect Hirsch’s right to be brought before a magistrate and have a preliminary hearing within 30 days?

Well, the affidavit of complaint shows as one of the entries

( ) Defendant given citation or arrested without warrant ( ) Arrest warrant shall issue ( ) Criminal summons shall issue

So, it appears that the judge let stand the citation.

In other words, I do not believe that his prosecution in criminal court is flawed, however, there are some arguments that the Judge in the General Session Court failed to follow procedure. The preliminary hearing is one in which the judge will listen to testimony from witnesses to determine sufficiency to bind the case over.

For serious crimes, known as felonies, cases must be scheduled for what is known as a preliminary hearing in the general sessions court. At the PRELIMINARY HEARING the judge will listen to testimony from witnesses to determine whether the evidence presented is sufficient to transfer the case to the circuit court for a trial. This transferring is called “binding the case over.” Defendants are also entitled to preliminary hearings in misdemeanor cases if they demand them, but usually a defendant charged with a misdemeanor will “waive” or give up his/her right to a preliminary hearing and allow the general sessions judge to try him/her without a jury. The State must present enough proof at a preliminary hearing to show that there is “probable cause” to believe the defendant committed the crime with which he or she is charged. PROBABLE CAUSE is a legal term for the amount of proof which must be presented at a preliminary hearing. Generally speaking, probable cause is shown when the proof shows that the defendant “probably’ committed the crime with which he/she is charged. It is usually necessary for all witnesses to appear at the preliminary hearing.

The Tennessee Rules of Criminal Procedure explain

(c) When Probable Cause Not Found. When the magistrate determines from the evidence that there is not sufficient proof to establish that an offense has been committed or probable cause that the defendant committed it, the magistrate shall discharge the defendant. The discharge of the defendant does not preclude the state from instituting a subsequent prosecution for the same offense. The recording of the preliminary hearing shall be made available to the defendant in the event the defendant is subsequently prosecuted for the same offense by indictment or presentment. The remedy for the failure to preserve the recording in this circumstance shall be as set forth in subsection (a)(3).

Even if probable cause is not found, the case can be prosecuted at a later time. So assuming for the moment that the General Session Court did not find probable cause, the fact that the defendant was indicted within the 12 months, suggests to me that his prosecution was properly initiated. However, in Hirsch’s case, the court did find probable cause during the April hearing.

The preliminary hearing has to take place within 10 days if the defendant remains in custody or 30 days otherwise. TN Rule of Criminal Procedure 45 outlines how time is to be computed. However Rule 5 does not apply when citations in lieu of continued custody are issued. And from the descriptions of this case, as well as the documents filed by Hirsch and the police officer, it seems clear that citations were in fact issued.

The Probable Cause hearing took place on December 10th and the preliminary hearing was scheduled for January 24, it was subsequently moved to April 11th and continued to April 28th. Hirsch objects that his motion to dismiss for lack of jurisdiction was not heard. January 24th however was not a preliminary hearing but rather an arraignment.

There is somewhat of a confusing issue here: The complaint states that the officer issued citations in lieu of continued custody, however, Hirsch was still taken to jail. TN Statute however allows for two kinds of citations, one which does not involve arrest or custody, and one issued after the person has been taken into custody.

Defendant REED wrote plaintiff a citation on an alleged weapons violation and for other alleged transportation misdemeanors

Plaintiff allege that defendant REED executed the affidavit of complaint with respect to the alleged weapons charge privately ex parte before defendant PATRICIA B. McGUIRE (hereinafter “McGUIRE”) while plaintiff remained locked up in jail.

There is no requirement that the defendant has to be present during this “probable cause” hearing. The rules prescribe that an affidavit of complaint is filed with the judge and that the judge may order a warrant to be issued.

Rule 5 by its terms does not apply to an arrest upon a capias pursuant to indictment or presentment. Rule 5(a)(1). These amendments are in no way intended to change the rule that, when there is no arrest warrant or criminal summons issued on an affidavit of complaint (where the State commences the prosecution by indictment or presentment), there is no right to a preliminary hearing. See Moore v. State, 578 S.W.2d 78 (Tenn. 1979).

To complicate matters:

The record shows that defendant REED waited until January 7, 2014 (28 days after plaintiffs arrest) to go before magistrate VALERIE MASHBURN (?) to execute another affidavit of complaint on an alleged misdemeanor charge.

If no Arrest Warrant was issued then Hirsch was likely released on a citation requiring him to appear and then the rule 5(a)(1)(B) does not apply:

(B) the county in which the alleged offense occurred if the arrest was made without a warrant, unless a citation is issued pursuant to Rule 3.5.

Wow, these statutes are quite confusing, however it may be that because of the nature of the citations in lieu of continued arrest, many of the stated time limits do not apply.

What is adding to the confusion that in addition to the citation, bail was assessed as well.

Tennessee Code Annotated, ‘ 40-7-118(b), provides that:

A peace officer who has arrested a person for the commission of a misdemeanor committed in the peace officer’s presence, or who has taken custody of a person arrested by a private person for the commission of a misdemeanor, 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. If the peace officer is serving an arrest warrant or capias issued by a magistrate for the commission of a misdemeanor, it is in the discretion of the issuing magistrate whether the person is to be arrested and taken into custody or arrested and issued a citation in accordance with this section in lieu of continued custody. The warrant or capias shall specify the action to be taken by the serving peace officer who shall act accordingly.

I would like to find out if Hirsch did indeed sign the citations, which would have set in motion a completely different path through the statutes as it no longer requires being brought before a magistrate and does not set the time limit for the preliminary hearing to 30 days.
So what was the January hearing about? An arraignment or a probable cause hearing? Things are starting to clear up. The January hearing was an arraignment hearing in which the Court entered a not guilty plea. Rule 11 of the Tennessee Rules of Criminal Procedure states that

(1) In General. A defendant may plead not guilty, guilty, or nolo contendere. The court shall enter a plea of not guilty if a defendant refuses to plead or if a defendant corporation, limited liability company, or limited liability partnership fails to appear.

Hirsch accuses the judge of entering a not guilty plea before the probable cause hearing but the probable cause hearing takes place after the arraignment.

Read more here

In Tennessee, an arraignment, often referred to as an “initial appearance,” is conducted by a magistrate or judge. The underlying purpose of this appearance is for the magistrate or judge to:

1.    Inform you of the offense(s) with which you have been charged;

2.    Inform you of your right to a lawyer in every stage of the proceedings;   and

3.    To schedule your next court appearance on a mutually convenient date for you, the involved lawyers, and the witnesses. An arraignment generally takes place in the General Sessions Court before the preliminary examination (often referred to as a “preliminary hearing”) or trial; or before a formal motion hearing in your case if the case is pending in a court of record such as Criminal Court or Circuit Court.

Read also the opinion of the State Attorney General of TN

The State has the “power” to deny a preliminary examination only when the State does not arrest the defendant but, rather, gets an indictment from the grand jury.

So was Hirsch arrested? He claims that there was no arrest warrant.

What remains confusing is the presence of bail and citation in lieu of arrest.

Remaining issues of concern. In fact, at the moment I can only see one:

  • Did the Judge tell the bail bond person not to allow for co-signing of Hirsch?