State v. Shelly Bragg, Kenneth Story and Craig Story

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JANUARY SESSION, 1999 February 19, 1999

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9805-CC-00236 ) Appe llant, ) ) HUMPHREYS CO UNTY V. ) ) ) HON . ALLEN W. W ALLAC E, SHELLY BRAGG, KENNETH ) JUDGE STORY, AND CRAIG STORY, ) ) Appellee. ) (STATE APPEAL)

FOR THE APPELLEE: FOR THE APPELLANT:

DALE M. QUILLEN JOHN KNOX WALKUP Attorney for Shelly Bragg Attorney General & Reporter and Ken neth Story MICH AEL J. FLAN AGAN LISA A. NAYLOR Attorney for Craig Story Assistant Attorney General 95 White Bridge Road, Suite 208 2nd Floor, Cordell Hull Building Nashville, TN 37205 425 Fifth Avenue North Nashville, TN 37243

DAN MITCHUM ALSOBROOKS District Attorney General

GEORGE C. SEXTON Assistant District Attorney General Humphreys County Courthouse Wa verly, TN 37185

OPINION FILED ________________________

AFFIRMED PURSU ANT TO RU LE 20

THOMAS T. WOODALL, JUDGE

ORDER In this case , the State appea ls as of right p ursuan t to Rule 3(c)(1) of the

Tennessee Rules of App ellate P roced ure fro m the trial court’s order granting the Defendants’ motions to suppress evidence seized pursuant to a search warrant executed on Sep tembe r 3, 1997 . The rec ord reflects that the trial court filed two (2) orders. One order generally granted the Defendants’ motions to suppress. The other order m ore sp ecifica lly suppressed testimony of police officers who conducted the search insofar as the testim ony perta ined to ev idence obtained , and state ments made by the Defendants to the officers. The motions to suppress evidence, which were generally granted, moved the court to suppress all items of physical evidence seized d uring the search .

The search warrant was issu ed upo n affidavit by A gent Billy H udspe th of the 23rd Judicial District Drug Task Force. Both the affidavit and the search warrant contained the following description of the premises to be searched:

Being locate d in Hum phrey s Cou nty, Te nnes see, a nd m ore pa rticularly described as follows:

Beginning at the intersection of Powers Street and East Railroad Street in McEwen, Humph reys County, Tenn essee , travel appr oximate ly .4 miles on Eas t Railroad Street to a gravel road o n the rig ht of sa id Railroad Street [sic]. Travel down said gravel road approximately 100 yards to a white vinyl sided house, said house being the second and last house on the gravel road and having an E911 address of 521 East Railroad Street, and a location that your affiant has previously passed on said Railroad Street [sic] and on the perso n of or in the possession of Kenneth S tory and/o r Craig Story, a certain controlled substance, to- wit: Metha mphe tamine . (Emph asis add ed).

The residence searched pursuant to the search warra nt was locate d in W averly, Tennessee, rather than McEwen, Tennessee. Testimony by Agent

-2-Huds peth at the suppression hearing was that a Railroad Street existed in McEwen, Tennessee, but there is not a Powers Street in McEwen. Agent Hudspeth was unable to testify as to the num ber of incorpora ted towns loca ted in Hum phreys County. Wh en ask ed wha t he wou ld have d one if he w ere a total stranger to Hump hreys County and had been hande d the sea rch warra nt, he testified, “[i]f I had been a total stranger, I’d have went to McEwen first and then when I realized that there wasn’t a Powers Street, Powers Boulevard or whatever, I would have asked do you kno w where this stree t is.”

The State argues that when there is an ambiguity in the description of the place to be searched, that “the legal effect of such a possible ambiguity may be determined by considering the fact that the executing officer was the affiant and perso nally knew where the pla ce to be searched was located.” The State relies upon State v. Conatser, 958 S.W.2d 357 (Tenn. Crim . App.) perm. to appeal denied (Tenn . 1997), in s upport o f this gene ral propo sition of law.

Howeve r, there really is no ambiguity in the description of the place to be search ed in the warran t. The warra nt state s that th e resid ence is locate d in McEwen, Ten ness ee. Th e resid ence was actually located in an entirely different incorporated town within Humphreys County. In Conatser, our cou rt noted tha t:

Tennessee law prohibits general warrants , Tenn . Const., art. I, § 7, and requires search warrants to describe ‘particularly . . . the place to be search ed.’ T.C.A. § 40-6-103. This requirement is satisfied if the description ‘particu larly points to a definitely ascertainable place so as to exclude all others, and enables the officer to locate the place to be searched with reasonable certainty without leaving it to his discre tion.’ (Citation omitted).

958 S.W.2d at 359.

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The requirement that a description “particularly p oints to a defin itely ascertainable place so as to exclude all others” is not met where the incorrect incorporated to wn is stated in the w arrant. W hen the sea rching officer is unaw are of the number of incorporated towns located within a county, it is leaving too much to the offic er’s discretion to pick the “correct” incorporated city to find an add ress to be searched.

In this case, the evidence does not preponderate against the finding and ruling the of trial court, and there is no error of law requiring a reversal of the judgment of the trial court ap parent o n the rec ord. The judgm ent of th e trial co urt is therefore affirmed in accordance with Rule 20 of the Court of Criminal Appeals.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ DAVID H. WELLES , Judge

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