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Analysis suggests grave overstep on police authority

Chattanooga police chief David Roddy talks to reporters after a city council meeting. His department operates well beyond the scope of laws it says give it authority to keep the peace. Unlike public works, transportation or economic development, the department is source of continuing abuse and scandal. (Photo David Tulis)
Jimmy Lee Moore was arrested by CPD in violation of his right to be subject to arrest under warrant. (Photo David Tulis)
Sheriff Jim Hammond, background, takes a call while Matt Lea, his spokesman, and Austin Garrett, chief deputy, deal with people at a meeting of the Hamilton County Commission. (Photo David Tulis)
Rev. Timothy Carreathers of Westside Baptist Church takes part in a weekly vigil in front of the sheriff’s office downtown to protest abuse of citizens, starting with the illegal traffic arrest and body cavity search of traveler James Myron Mitchell. (Photo David Tulis)

The Chattanooga police department’s refusal to obey the scope of Title 55, the motor and other vehicles statute, invites closer scrutiny of its obedience to other laws.

My review of arrest procedures indicates that the department, with the complicity of the magistrates and the lower courts, disobeys a law that gives grounds for arrest by the officer without a warrant but also limits arrest powers. That law gives an inch to the state from the body of constitutional rights, and the lawyer-police industrial complex for decades now takes a mile.

By David Tulis / NoogaRadio 92.7 FM

That is Tennessee Code Ann. 40-7-103.  The department, routinely arrests people without a warrant when the statute requires a warrant be obtained before the arrest to establish probable cause judicially. 

A review of the departmental police “authority and discretion” manual, Adm-25, published in 2016, highlights a third area requiring reform — namely its training about probable cause, arrest and Miranda warnings. This training is strongly adverse to the rights of the people, and keeps officers in a state of confusion — again, a phenomenon damaging to the rights of the people under the constitution.

Whence police power?

What type of authority do police use? What are its origins? The answer under law is that cops are limited to common law public offenses in their activity, and appear to be denied a much broader scope of work — law enforcement, as it’s called.

Police authority flows from that public authority exercised by the sheriff — Jim Hammond in the case of Hamilton County. The law describing Sheriff Hammond’s power is not cited by the department, but it needs be cited here to better understand those provisions as cited by CPD .

The sheriff’s job is under the heading “preventing commission of offenses” and “the prevention and detection of crime,” TCA § 38-34-03. The CPD’s authority appears to be a subcategory of this charge, but is in fact an activity of a different sort. The department says its job is “to enforce the law and make arrests for violations of the law.” Adm-25, Page 1. 

Misrepresenting authority statute

The law states the sheriff’s authority in terms of keeping the peace. “Public offenses may be prevented” by “the intervention of the officers of justice” by “suppressing riots, unlawful assemblies and breaches of the peace” Tenn. Code Ann. § 38-3-101. Methods of preventing offenses.

The duty, significantly, of the sheriff is not law enforcement, but peacekeeping. His job is upon “public offenses,” not necessarily upon crime.

Tenn. Code Ann. § 38-3-102 Duties of sheriff.

(a)  The sheriff is the principal conservator of the peace in the sheriff’s county. It is the sheriff’s duty to suppress all affrays, riots, routs, unlawful assemblies, insurrections, or other breaches of the peace, to do which the sheriff may summon to such sheriff’s aid as many of the inhabitants of the county as such sheriff thinks proper.

(b)  It shall be the duty of the sheriffs, in their respective counties, by themselves or deputies, to patrol the roads of the county, to ferret out crimes, to secure evidence of crimes, and to apprehend and arrest criminals. [Emphasis added]

These sorts of crimes are part of the law that this reporter described to CALEA, the department’s certifying body, as one the department routinely ignores — a law that carves out exceptions from the people’s constitutionally guaranteed right to be arrested under warrant issued under probable cause by a judge or magistrate.

That is to say, the sheriff and the police control for “public offenses,” a term that excludes many crimes police today “enforce” against.

These books on display at the downtown library are on the Chattanooga police department reading list. Officers are required to be fearless because their bosses misinform them about the scope of their duties and the limits on the laws they enforce against members of the public. (Photo David Tulis)

A defense of current practice would say that the second provision in the law above (referring to crime) refers to offenses beyond “public offenses.” But the rules of construction would dictate that crime is in the nature from, and flows from, the main duty assigned, and not be a second category. The second provision explains the how the first is put into practice, in other words.

‘Officers of justice’

CPD does not cite the above statute for its power — perhaps for political reasons or to pretend its authority is distinct from the sheriff’s. But CPD joins itself with “other conservators of the peace in the next provision of the law, Tenn. Code Ann. § 38-3-103.

The judicial and ministerial officers of justice in the state, and the mayor, aldermen, marshals and police of cities and towns, and the director, commissioner, or similar head of any metropolitan or municipal police department, whether elected or appointed, are also conservators of the peace, and are required to aid in the prevention and suppression of public offenses, and for this purpose may act with all the power of the sheriff. [Emphasis added]

The authority of CPD arises by mention of “police of cities and towns.” But they are “conservators of the peace” whose job is “to aid in the prevention and suppression of public offenses.” They aid the people and the sheriff to prevent and suppress “public offenses.”

Officers in Tennessee law are seen as being proximate to the people, enmixed in them — not professional superiors above them, as cops today have proven to be. Officers may “command the aid of the inhabitants *** for suppressing riots” and can charge a citizen or resident with a misdemeanor “who without good cause refuses or neglects to obey” a command for help, the law nearby says.

‘Public offense’ standard reinforced

Chattanooga police cite a second source their authority. It deals with the duty to arrest any person who is armed “with the intention of committing a riot or affray, or of assaulting” someone or breaking the peace.

It is the duty of all peace officers who know, or have reason to suspect, any person of being armed with the intention of committing a riot or affray, or of assaulting, wounding, or killing another person, or of otherwise breaking the peace, to arrest such person immediately, and take such person before the court of general sessions. 

Tenn. Code Ann. § 38-3-108. Duty to arrest.

Police power (apart from enforcing ordinances of the municipal corporation) — is to keep the peace. That is distinct from “enforcing the law.” It’s job is not to enforce the drug war, nor impose the state freight and trucking law upon people who are not truckers, nor enforce any law forbidding an act that is not a public offense. Its authority, in this provision, is upon common law crimes that are in the nature of a public offense. 

Many laws for which arrests are made are not public offenses. That would include most so-called traffic infractions, privilege offenses (“driving on revoked”), the possession of contraband such as marijuana, and other wrongs that are administrative infractions such as “failure to appear” or failure to pay child support.

The department’s authorities, in short, are for activities to suppress and recompense public offenses, acts that are in the nature of “riot or affray” or assault, wounding or killing.

Police in Chattanooga and every other city in Tennessee operate outside the scope of these laws the CPD cites from Tennessee code annotated.

To sum up, CPD’s authorities allow its officers to exercise a common law authority upon public offenses in the nature of a public disorder. The nature of these offenses I have developed in my analysis of Tenn. Code Ann. § Tite 49-7-103, grounds for arrest by officer without warrant. (See, for example, the link nearby.

CPD manual misrepresents ‘arrest’

CPD says in its manual officers are “subject to constitutional and statutory limits.” That may be clear enough. But words pile on, and things get muddy as to the claim of the Tennessee constitution.

Limitations on police authority are derived from federal, state and local laws, judicial opinions, and  department policies and procedures.

This list in the authorities and discretion manual Adm-25 puts “department policies” on par with the constitution. What follows is a cryptic discussion of arrest powers, vague enough to provide no clear rule for officers in the city.

The city has a separate arrest manual. But arrest comes up in Adm-25 because officer discretion plays a huge role on who gets arrested. 

Police officers are sometimes in doubt as to when Miranda warnings should be given. While Miranda deals with in-custody interrogations, the question of when “custody” applies is a common question.

Escobedo v. Illinois mandates that Miranda [vs. Arizona] warnings be given when the investigation begins to focus on a suspect or suspects, and the interrogation reaches an accusatory state. Since these two cases may appear to contradict each other, a police officer should read a suspect the Miranda warnings whenever a suspect is in custody and the officer intends to interrogate the suspect. [Emphasis added]

Chattanooga police, again, give themselves leeway as to what constitutes custody. A point to remember: When you not free to leave, you are in custody. Period.

When does ‘accusatory state’ begin?

Of special interest to police victims across Southeast Tennessee and in Chattanooga is the scope of the act of arrest, custody and “interrogation.” When does it start? Do your Miranda rights hegin only at the start of an “official interrogation” at the police station? What must the cop have on you to be able to arrest you? Must you say or reveal anything once under arrest? Can you be put under arrest before the officer has a warrant or probable cause because he has seen you commit a crime in his presence?

The police manual is duplicitous. Rather than training officers with clarity to respect the rights of the people and to be careful not to offend them, it fudges on the key question: When does “the interrogation [reach] an accusatory state”? 

The training manual of CPD refuses to recognize the rights of the people, and lets officers get away with what they can in seizing people, interrogating them, getting them to incriminate themselves, all without benefit of a warrant, and often without benefit of the lower existing probable cause standard.

The accusatory state, according to the supreme court in Tennessee, begins the moment the lights come on and you are “not free to leave.” Two cases make this assertion clear. The accusatory state is not some point later in the encounter after which time the defendant has already incriminated himself repeatedly, and confessed facts starting with his name.

The officer reaches the “accusatory state” via probable cause affirmed under oath before a judge, then applied against the person he intends to seize for a criminal offense.

Police probable cause is to be upon criminal activity seen by the officer or reliably reported to him as having been done by the individual. The police manual correctly says this: 

Probable Cause – means the existence of facts and circumstances within the officer’s knowledge at the time of an arrest and of which the officer “had reasonably trustworthy information sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. ” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)  [Emphasis added]

Sue cop as oppressor, defend self in traffic court: Transportation Administrative Notice

In other words, the officer has no authority under this definition to arrest (stop) anyone unless he has “committed” or “was committing an offense.” 

As my analysis strongly suggests, traffic infractions are not crimes, even under the existing enforcement paradigm, as they come not from the criminal statutes in Title 39, but the freight, hauling, trucking and motor vehicle statute at Title 55, motor and other vehicles.

Blue lights on road = criminal charge pending

It is no surprise that a city government that ignores plain black-letter law on the transportation and motor vehicle law (see extensive coverage of this abuse at TNtrafficticket.us) will not be too exact about the people’s protections in matters of arrest without warrant and a continuation of racially tinged Jim Crow social management in Chattanooga.

A Tennessee supreme court case on police action against travelers and other members of the people of Tennessee is State v. Garcia, 123 S.W.3d 335 (Tenn. 2003). It shows that a crime must be in view before cops can stop a traveler in a car or truck. 

A crime. 

That is, under Title 39. Infractions under Title 55 are infractions, contract violations, miscues or missteps in equity, in a commercial relationship between a licensor and a licensee.  As the high court’s first ruling on driver licenses makes clear, legal conflicts over driver licenses are civil and in equity. They are not crimes. (Sullins v. Butler, 135 S.W.2d 930 (Tenn. 1940)

Real authority comes only when the officer has a warrant or probable cause created by articulable suspicions of a public offense or of a serious crime. According to Garcia:

One exception exists “when a police officer makes an investigatory stop based upon reasonable suspicion, supported by specific and articulable facts, that a criminal offense has been or is about to be committed.” Binette, 33 S.W.3d at 218 (citing Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). We have noted that “[u]pon turning on the blue lights of a vehicle, a police officer has clearly initiated a stop and has seized the subject of the stop within the meaning of the Fourth Amendment of the Federal Constitution and Article I, section 7 of the Tennessee Constitution.” Id. (citing State Page 344v. Pulley, 863 S.w.2d 29, 30 (Tenn. 1993)). Accordingly, in the instant case, when Officer Kohl stopped Garcia’s vehicle by turning on her blue lights, she must have had reasonable suspicion, supported by specific and articulable facts, that the defendant had committed, or was about to commit, a criminal offense in order for the stop to be constitutionally valid. [Emphasis added]

The CPD manual is fuzzy on when arrest occurs, and department practice grants huge powers against the rights of the people on several fronts. Traffic stops are traffic arrests the moment the blue lights come on. The cop must have articulable probable cause of the traveler in the car having committed a crime (or is about to commit one). The stop cannot be used to generate probable cause by the innocent words of the person behind the wheel. That is illegal under Garcia and other cases. 

The department has been under notice since Feb. 20, 2018, that if it has authority for traffic enforcement, it must determine at the very beginning of every “traffic stop” whether the person in the car is operating commercially. Its officer never do that — ever. Because of notice, they are acting in bad faith, and violating state and federal regulation of transportation. Officers routinely make arrests that violate 40-7-103, grounds for arrests by officer without a warrant, arresting people such as Jimmy Lee Moore, Diana Watt and Jon Luman roadside without their having been a car accident.

The David Tulis show is 1 p.m. weekdays, live and lococentric.

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