II. PRELIMINARY PROCEEDINGS

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Rule 3: The Affidavit of Complaint.

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.

Advisory Commission Comment.

This rule governs what must be done to secure the issuance of an arrest warrant. Under our statutory scheme, per T.C.A. ยง 40-6-214, clerks of courts of general sessions and their sworn deputies have jurisdiction and authority (concurrent with that of their judges) to issue arrest warrants. It is important that any clerk issuing an arrest warrant know and fully appreciate the legal significance of the fact that it is a judicial function which is being performed. The validity of the warrant depends upon the making of a probable cause determination; a warrant must never be issued as a mere ministerial act done simply upon application. Moreover, a valid warrant can be issued only by one who is neutral and detached and capable of making a probable cause determination, Shadwick v. City of Tampa, 407 U.S. 345 (1972), based upon an adequate showing of probable cause, Aguilar v. Texas, 378 U.S. 108 (1964) [overruled by Illinois v. Gates, 462 U.S. 213 (1983)]. One who is paid a fee for the issuance of a warrant, but nothing where such issuance is refused, is not a neutral and detached magistrate who can validly issue warrants, Connally v. Georgia, 429 U.S. 245 (1977).

It must be emphasized that before a valid arrest warrant can issue, the judicial officer issuing the warrant must be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Whiteley v. Warden, 401 U.S. 560 (1971). A factually sufficient basis for the probable cause judgment must appear within the affidavit of complaint. If hearsay evidence is relied upon, the basis for the credibility of both the informant and the informant's information must also appear in the affidavit. Spinelli v. U.S., 393 U.S. 410 (1969) [overruled by Illinois v. Gates, 462 U.S. 213 (1983)]. The comparable federal rule calls this affidavit the "complaint." Since that technical term is used differently in our civil procedure, and also to further emphasize to the one issuing an arrest warrant the necessity for first having in hand a detailed complaint reduced to writing and sworn to, the commission adopted "affidavit of complaint" to describe the document upon which the issuance of the arrest warrant is based.

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