On August 19, 2022, Joshua Gibbons arrived at Aerojet Rocketdyne Corporation in Jonesborough, Tennessee. He sent me a link to his video of him getting arrested shortly afterwards. A few other people submitted this video as well.
The police officer, a deputy with the Washington County Sheriff’s Office, jumped straight into a warrantless arrest here. He needed probable cause to arrest Josh without an arrest warrant. There are three levels of interaction between a police officer and an individual:
- A consensual encounter;
- An investigatory detention; and
- A warrantless arrest.
Number 1 requires nothing, so long as it’s objectively consensual. Fourth Amendment protections to not apply to consensual encounters.
An investigatory detention requires reasonable suspicion. Fourth Amendment protections do apply to detentions. They must be reasonable.
A warrantless arrest requires probable cause.
Here, the officer appears to have skipped directly to number 3, a warrantless arrest, which requires probable cause.
What is the basic criminal trespass law in Tennessee?
State v. Hollingsworth, 944 S.W.2d 625 (Tenn. Crim. App. 1996).
Before an accused can be convicted of criminal trespass, the State of Tennessee must prove beyond a reasonable doubt that (a) the accused entered or remained on the property, or a portion of the property, of another person, and (b) the accused did not have the owner’s effective consent before entering the property. Tenn.Code Ann. § 39-14-405(a)…
The accused’s knowledge that he or she did not have the “effective consent” to enter the property may be inferred from “(1) personal communication to the [accused] by the owner or by someone with apparent authority to act for the owner,” and (2) “[f]encing or other enclosure obviously designed to exclude intruders.” Tenn.Code Ann. § 39-14-405(a)(1) and (2).
State v. Lee (Tenn. Crim. App. 2000).
Knowledge that the person did not have the owner’s effective consent may be inferred where notice against entering or remaining is given by personal communication to the person by the owner. Tenn. Code Ann. § 39-14-405(a)(1).
Was he on public or private property? If he was on private property, did Josh have knowledge that he was on private property without the owner’s consent? As far as the issue over public or private property, more information is needed. With the information given however, we know the following:
Josh subjectively believed he was located within the public right of way. Being right on the edge of the public road, he very well may have been. You’ll notice that there was a fence a little further off the road. Josh was nowhere near that fence. Josh credibly demonstrated to the police officer that he subjectively believed he was on a public right of way, and not trespassing onto a private owner’s land. Secondly, the police officer didn’t know one way or the other whether Josh was within a public right of way, or on private property. Moreover, even if Josh was on public property, the officer admittedly didn’t know who the owner was.
Therefore, there’s a great case to be made that Josh could not have violated Tennessee’s criminal trespassing statute. Even if he was on private property, there’s no evidence that he had the requisite criminal intent to commit trespassing. Additionally, the officer performed almost no investigation prior to his warrantless arrest. Surprisingly he didn’t even bother to request Josh’s ID first. He just arrested him.