You have the right to look at a search warrant that a law enforcement officer is getting ready to serve and enforce. Read the sections below and familiarize yourself with what constitutes a legal search warrant.

1. It must have been issued and signed by a magistrate.

2. The signature must be in black ink.

3. It must contain the court seal.

It must state what is being sought and where with specificity, not general terms.

Tennessee Code Annotated §40-6-101 through 107, §39-16-602, Art. 1, §7 of the Tennessee State Constitution and Amendment IV, of the United States Constitution govern search warrants.

Tennessee Code Annotated:

40-6-101. Definition. - A search warrant is an order in writing in the name of the state, signed by a magistrate, directed to the sheriff, any constable, or any peace officer of the county, commanding him to search for personal property, and bring it before the magistrate.

40-6-102. Grounds for issuance. - A search warrant may be issued on any one of the following grounds:

(1) Where the property was stolen or embezzled;

(2) Where it was used as the means of committing a felony;

(3) Where it is in the possession of any person with the intent to use it as a means of committing a public offense, or in the possession of another to whom he may have delivered it, for the purpose of concealing it, or preventing its discovery; and

(4) Any other ground provided by law.

40-6-103. Probable cause and affidavit. - A search warrant can only be issued on a probable cause, supported by affidavit, naming or describing the person, and particularly describing the property, and the place to be searched.

40-6-104. Examination of complainant. - The magistrate, before issuing the warrant, shall examine on oath the complainant and any witness he may produce, and take their affidavits in writing, and cause them to be subscribed by the persons making them; and the affidavits must set forth facts tending to establish the grounds of the applications, or probable cause for believing that they exist.

40-6-105. Issuance of Warrant. - If the magistrate is satisfied of the existence of the grounds of the application, or that there is probable ground to believe their existence, he shall issue a search warrant signed by him, directed to the sheriff, any constable, or any peace officer, commanding him forthwith to search the person or place named for the property specified, and to bring it before the magistrate.

40-6-106. Form of Warrant. - The warrant may be substantially in the following form:

State of Tennessee,

________________ County.

To the sheriff or any constable of said county:

Proof by affidavit having been made before me by A. B., that (stating the particular grounds of the application; or, if the affidavits are not positive, "that there is probable cause for believing that," stating the particular grounds of the application); You are therefore hereby commanded to make immediate search on the person of C.D. (or "in the house of E.F.," or "in the house situated," describing it, or any other place to be searched, with reasonable particularity, as the case may be) for the following property (describing it with reasonable particularity); and if you find the same, or any part thereof, to bring it forthwith before me at (stating the place). This ______________ day of _____________________, 19 _______. L.M., Magistrate

40-6-107. Return date. - A search warrant shall be executed and returned to the magistrate by whom it was issued within five (5) days after its date; after which time, unless executed, it is void; and all search warrants in this state may be executed either in the daytime or in the nighttime.

39-16-602. Resisting stop, frisk, halt, arrest, or search. - (a) It is an offense for a person to intentionally prevent or obstruct anyone known to the person to be a law enforcement officer, or anyone acting in a law enforcement officer’s presence and at such officer’s direction, from effecting a stop, frisk, halt, arrest, or search of any person, including the defendant, by using force again the law enforcement officer or another.

(b) Except as provided in §39-11-611, it is no defense to prosecution under this section that the stop, frisk, halt, arrest, or search was unlawful.

(c) A violation of this section is a Class B misdemeanor unless the defendant uses a deadly weapon to resist the stop, frisk, halt, arrest, or search, in which event violation is a Class A misdemeanor.

39-11-611. Self-defense. - (a) A person is justified in threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other’s use or attempted use of unlawful force. The person must have a reasonable belief that there is an imminent danger of death or serious bodily injury. The danger creating the belief of imminent death or serious bodily injury must be real, or honestly believed to be real at the time, and must be founded upon reasonable grounds. There is no duty to retreat before a person threatens or uses force.

(b) Any person using force intended or likely to cause death or serious bodily injury within their own residence is presumed to have held a reasonable fear of imminent peril of death or serious bodily injury to self, family or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

(c) The threat or use of force against another is not justified if the person consented to the exact force used or attempted by the other individual.

(d) The threat or use of force against another is not justified if the person provoked the other individual’s use or attempted use of unlawful force, unless:

(1) The person abandons the encounter or clearly communicates to the other the intent to do so; and

(2) The other nevertheless continues or attempts to use unlawful force against the person.

(e) The threat or use of force against another is not justified to resist a halt at a roadblock, arrest, search, or stop and frisk that the person knows is being made by a law enforcement officer, unless:

(1) The law enforcement officer uses or attempts to use greater force than necessary to make the arrest, search, stop and frisk, or halt; and

(2) The person reasonably believes that the force is immediately necessary to protect against the law enforcement officer’s use or attempted use of greater force than necessary.

39-11-614. Protection of property. - (a) A person in lawful possession of real or personal property is justified in threatening or using force against another when and to the degree it is reasonably believed the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.

(b) A person who has been unlawfully dispossessed of real or personal property is justified in threatening or using force against the other when and to the degree it is reasonably believed the force is immediately necessary to reenter the land or recover the property if the person threatens or uses the force immediately or in fresh pursuit after the dispossession; and:

(1) The person reasonably believes the other had no claim or right when the other dispossessed the person ; and

(2) The other accomplished the dispossession by threatening or using force against the person.

(c) A person is not justified in using deadly force to prevent or terminate the other’s trespass on real estate or unlawful interference with personal property.

TRESPASSING

Section 39-14-405 and the sections which follow deal with what constitutes criminal trespass and how to properly post "No trespassing" signs.

Be sure to check with your county court clerk to see if you must file the "No Trespassing" notice. Otherwise, here are the basics:

1. The sign must be posted where it is in clear sight.

2. Anyone who comes onto the property and leaves when asked has not trespassed.

3. Some jurisdictions require that you sign the "No Trespassing" sign.

BEWARE OF THE DOG SIGNS

In more and more jurisdictions these days, courts are holding that a "Beware of the Dog" sign is an admission that your dog is a dangerous animal. At one point in time, I had one of these signs. Upon learning about this, I took the sign down. I didn’t want to give any more leverage to the other side than necessary. I discovered the "No Trespassing" signs were better.

CONSTITUTIONAL BASICS

1. The government at both the state and federal levels is divided into three separate branches. The executive which enforces the laws passed by the legislative branch. The legislative branch which writes and passes the laws. The judicial branch which hears disputes between parties. For one branch to usurp or engage in the powers of another branch is expressly forbidden by both state and federal constitutions. This can be interpreted to mean that an executive

Back to the Map