Tenn. R. Juv. P. 203
In either case, if the magistrate does not make the required findings, the child shall be immediately released to the child's parent, guardian or other custodian. If the required findings are made and the child remains in secure detention, a detention hearing must be held within the timeframes outlined in subdivision (b)(2). "Magistrate" means a person designated as such pursuant to the provisions of T.C.A §§ 37-1-107 or 40-1-106. Probable cause determinations shall be based on a written affidavit, which may be sworn to in person or by audio-visual electronic means.
Tenn. R. Juv. P. 203
Advisory Commission Comments.
This rule applies only to children alleged to be delinquent. A child alleged to be unruly and taken into custody may not be held in a secure facility for a period longer than allowed in T.C.A. § 37-1-114.
Subdivision(b) clarifies that upon a warrantless arrest of a child alleged to be delinquent, a neutral and detached magistrate must make a probable cause determination that the child has committed the delinquent offense within 48 hours of the arrest. This determination may be made ex parte. Under the Fourth Amendment, in order for a state to detain a person arrested without a warrant, a judicial officer must determine that probable cause exists to believe the person has committed a crime. Gerstein v. Pugh, 420 U.S. 103 (1974). The judicial officer must make this determination "either before or promptly after arrest." Id. at 124. Seventeen years later, the Court further refined its Gerstein decision, holding that probable cause determinations must be made within 48 hours of a warrantless arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991) ( "A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest"). Although the Supreme Court has not addressed whether Gerstein hearings are required for
juveniles, the Sixth Circuit has answered this question affirmatively. Cox v. Turley, 506 F.2d 1347, 1353 (6th Cir. 1974) ("Both the Fourth Amendment and the Fifth Amendment were violated because there was no
prompt determination of probable cause - a constitutional mandate that protects juveniles as well as adults"). See also State v. Bishop, No. W2010-01207-SC-R11-CD, 2014 Tenn. LEXIS 189, 2008 WL 888198 (Tenn. 2013), and State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996).
The probable cause determination in subdivision (b)(1) must be based on a written affidavit reciting the facts, which may be sworn to in person or by audio-visual electronic means. Black's Law Dictionary defines affidavit as "(a) voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths." Black's Law Dictionary 66 (9th ed. 2009).
Subdivision(b)(2) refers to an "order of attachment." The Commission uses the phrase "order of attachment" to refer to any court order commanding that the child be taken into custody. Some jurisdictions may refer to these orders as orders of arrest or arrest warrants. Such orders of attachment may direct the appropriate authorities to take the child to a detention facility, to the police station, to court, or to another place.
Wherever possible, community-based alternatives to secure detention facilities should be used. This preference is in keeping with the prohibition in T.C.A. § 37-1-114 against any detention or shelter care of children unless "there is no less drastic alternative to removal of the child from the custody of his parent, guardian or legal custodian available which would reasonably and adequately protect the child's health or safety or prevent the child's removal from the jurisdiction of the court pending a hearing."
The Commission recognizes that detention is a severe curtailment of the child's liberty and affects not only the child, but the child's parent, guardian or custodian. A child in detention is presumed to be innocent and retains all rights guaranteed to children facing charges but who are not detained. Accordingly, detention should be as brief as possible and should be used only when absolutely necessary to accomplish the objectives of the statute. The court should determine, on an individual basis, whether the child's continued detention is warranted under T.C.A. § 37-1-114 and that there are no less drastic alternatives available. The court should make specific findings of fact justifying continued detention.
A child alleged to be delinquent has the right to an attorney at the detention hearing, as well as all other stages of a delinquency proceeding. The court must inform the child of the right to an attorney at the beginning of the hearing, pursuant to the procedures in Rule 205. Also, in order for a child to effectively waive the right to an attorney, the court must comply with the process to obtain a knowing and voluntary waiver in that rule.
Courts should have an established practice in place for the appointment of attorneys as soon as possible prior to detention hearings. If at all practicable, detention hearings should not be continued for the sole reason of locating and appointing attorneys. The Commission recognizes that time constraints may interfere with this objective, but would stress that continued deprivation of liberty is a significant event in the life of a child.
Advisory Commission Comments [2017].
A new sentence (which reads, "If the required findings are made and the child remains in secure detention, a detention hearing must be held within the timeframes outlined in subdivision (b)(2)") is added to subdivision (b)( 1) to provide further clarification that a detention hearing must be held even though the required 48-hour probable cause findings are made.