                    IN THE SUPREME COURT OF TENNESSEE
                               AT KNOXVILLE
                                      May 3, 2005 Session

  STATE OF TENNESSEE v. SHEILA TERESA GAYE BOBADILLA and
               BENJAMIN BERNAL BOBADILLA

                   Appeal by permission from the Court of Criminal Appeals
                             Criminal Court for Greene County
                    No. 03CR070, 03CR070A       James E. Beckner, Judge


                   No. E2003-02369-SC-R11-CD - Filed November 30, 2005


We accepted review of this cause under the Tennessee Rules of Appellate Procedure, Rule 11, in
order to address a question properly preserved and certified pursuant to the provisions of the
Tennessee Rules of Criminal Procedure, Rule 37(b)(2). The question, as certified, is: “Whether the
search warrant and accompanying affidavit that led to the search of the defendant’s residence
violated the United States and Tennessee Constitutions as well as Tennessee Rule of Criminal
Procedure 41(c), so as to render all of the evidence seized pursuant thereto, illegal and inadmissible.”

In our painstaking review of the record, we have determined that the search warrant was not issued
in accordance with the requirements of the Tennessee Rules of Criminal Procedure, specifically Rule
41(c). Thus, we hold the search conducted pursuant to the warrant unreasonable and the evidence
obtained as a result inadmissible. Accordingly, the judgment of the Court of Criminal Appeals,
affirming the trial court’s judgment on other grounds is reversed, and the indictment in this case is
dismissed.

  Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
                                       Reversed

ADOLPHO A. BIRCH , JR., J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J.,
and FRANK F. DROWOTA , III, E. RILEY ANDERSON , and JANICE M. HOLDER , JJ., joined.

J. Russell Pryor, Greeneville, Tennessee, for the Appellant, Benjamin B. Bobadilla.
T. Wood Smith, Greeneville, Tennessee, for the Appellant, Sheila Bobadilla.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth
T. Ryan, Assistant Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

                                   I. Facts and Procedural History
        On May 13, 2003, a magistrate issued a warrant for the search of the residence of Benjamin
and Sheila Bobadilla. Deputy Sheriff Doug Johnson executed the warrant on the same day and,
during the search of the home, uncovered contraband and drug paraphernalia. The defendants were
each indicted for possession of a controlled substance with intent to sell or deliver in violation of
Tennessee Code Annotated section 39-17-417 and possession of drug paraphernalia in violation of
Tennessee Code Annotated section 39-17-425.

        The defendants filed motions to suppress the evidence obtained during the search, alleging
that the warrant had been issued without probable cause and that the warrant had failed to meet the
requirements of Tennessee Rule of Criminal Procedure 41(c). Although no testimony was adduced
in support of their motions, the trial court overruled the motions and commented as follows:

                The only item in all of this affidavit and warrant combination that doesn’t
       comply with Rule 41 is the hour. And I know that Stepherson says . . . which is a
       paraphrase, says where the issuing magistrate fails to endorse the warrant [with] the
       hour, date, and name of the officer to whom it is delivered for execution, the search
       is illegal.

               Here, the name and the date are endorsed sufficiently. It is only the hour that
       is missing. . . . [I]t was executed on the same date that it was issued [and] endorsed
       by the officer. . . . It seems to me that that does in fact supply all the things needed.

               ....

             . . . I find and I believe that the appellate courts would find that all the
       elements are supplied. . . .

Thereafter, Sheila Bobadilla pleaded guilty to facilitation of possession of cocaine with the intent
to sell or deliver, and Benjamin Bobadilla pleaded guilty to possession of cocaine with the intent to
sell or deliver. Both defendants pleaded guilty to possession of drug paraphernalia. The trial court
sentenced Sheila Bobadilla to serve concurrent sentences of three years for count one and eleven
months twenty-nine days for count two. The trial court sentenced Benjamin Bobadilla to serve eight
years for count one and eleven months twenty-nine days for count two, concurrently. The trial court
imposed fines totaling $2,150 upon each defendant.

        The defendants, pursuant to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure,
preserved a question for appellate review: whether the search warrant and accompanying affidavit
that led to the search of the defendant’s residence violated the Tennessee and United States
Constitutions and Tennessee Rule of Criminal Procedure 41, so as to render all of the evidence
seized pursuant thereto, illegal and inadmissible.

        On direct appeal, the Court of Criminal Appeals affirmed the trial court’s judgment without
having considered the certified question. Now, we consider the certified question pursuant to Rule
11 of the Tennessee Rules of Appellate Procedure.


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                                          II. Standard of Review

        This case involves the trial court’s denial of the defendants’ motion to suppress evidence.
On appeal, unless the evidence preponderates otherwise, we presume the trial court’s findings of fact
are correct. State v. Lawrence, 154 S.W.3d 71, 75 (Tenn. 2005) (citing State v. Davis, 141 S.W.3d
600,625 (Tenn. 2004) and State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). This case does not
involve any factual dispute; therefore, this Court reviews de novo the trial court’s application of the
law to the facts, without according any presumption of correctness. See State v. Crutcher, 989
S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

                                                III. Analysis

                            A. Documents Appended to Filings as Evidence

       Before addressing the certified question, we must address the Court of Criminal Appeals’
conclusion that it could not consider the defendants’ contention on appeal because the search warrant
was not in evidence. The State contends, and the Court of Criminal Appeals agrees, that the search
warrant in this case cannot be considered on appeal because the search warrant was not admitted into
evidence and, therefore, was not a part of the record on appeal.

        It is well-settled that the duty to prepare a record which “conveys a fair, accurate, and
complete account of what transpired with respect to those issues that are the bases of the appeal”
rests on the appellant. Tenn. R. App. P. 24(b). What is in the record sets the boundaries for what
the appellate courts may review, and thus only evidence contained therein can be considered. State
v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987), perm. app. denied, (Tenn. 1987). The
appellate rule concerning content and preparation of the record states, in part: “The record on appeal
shall consist of: (1) copies, certified by the clerk of the trial court, of all papers filed in the trial court
except as hereafter provided; [and] (2) the original of any exhibits filed in the trial court . . . .” Tenn.
R. App. P. 24(a).

         The State cites State v. Johnson, where the court would not consider a search warrant because
it was not made a part of the record. 854 S.W.2d 897, 901 (Tenn. Crim. App. 1993). In Johnson,
however, the search warrant was made available to the appellate court only in an attempt to amend
the trial record. Id.

        Additionally, the State relies on State v. Melson, 638 S.W.2d 342 (Tenn. 1982). A
photocopy of the search warrant in Melson was stapled to a memorandum in support of the motion
to suppress. Id. at 351. This Court concluded that the manner in which the search warrant had been
placed in the record fell short. Id. (citing Krause v. Taylor, 583 S.W.2d 603 (Tenn. 1979)). The
warrant had not been referred to as being incorporated in the memorandum, and it had not been
introduced as evidence. Id. Moreover, in accordance with Tennessee Rule of Appellate Procedure
24(a), a memorandum of law is not included in the appellate record. See Willis v. Tennessee Dept.
of Corr., 113 S.W.3d 706, 709 n.2 (Tenn. 2003); Aclin v. Speight, 611 S.W.2d 54, 56 (Tenn. App.
1980).


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         The instant case is distinguishable from Johnson and Melson. The search warrant in this case
was appended to the defendant’s motion to suppress; it was not stapled to a memorandum in support
of the motion. The motion, with the search warrant appended thereto, was properly filed with the
trial court on September 9, 2003. The motion to suppress and the search warrant were both included
in the record that was certified and provided by the Clerk of the Criminal Court of Greene County
to the Court of Criminal Appeals.

       Furthermore, in State v. Housler, we recently held that

       any matter appropriately considered by the trial court is properly includable in the
       appellate record and may be added to the record under Rule 24(g) when such matter
       is ‘necessary to convey a fair, accurate and complete account of what transpired in
       the trial court with respect to issues that are the bases of appeal.’

167 S.W.3d 294, 298 (Tenn. 2005). Thus, because the copy of the search warrant was in the record
and was reviewed and considered by the trial court, we conclude that the defendants have built a
proper record and, upon appellate review, the search warrant may be considered.

                           B. Tennessee Rule of Criminal Procedure 41

        We are hampered somewhat in our consideration of the certified question because the Court
of Criminal Appeals did not address the merits of the question as certified. A remand to the Court
of Criminal Appeals for its examination would constitute, in our view, a needless expenditure of
scarce judicial resources. Additionally, there are no disputed issues of fact apparent in the record.
For these reasons, we elect to respond to the certified question, which is dispositive of the cause.
See Tenn. R. App. P. 13(b).

        Tennessee Rule of Criminal Procedure 41(c) imposes “procedural safeguards [which] are
intended ‘to secure the citizens against carelessness and abuse in the issuance and execution of
search warrants.’” State v. Coffee, 54 S.W.3d 231, 233 (Tenn. 2001) ( quoting Talley v. State, 345
S.W.2d 867, 869 (Tenn. 1961)). The portion of Rule 41(c) which is most pertinent to this case is
as follows:

       The magistrate shall endorse upon the search warrant the hour, date, and name of the
       officer to whom the warrant was delivered for execution; and the exact copy of the
       search warrant and the endorsement thereon shall be admissible evidence. Failure of
       the magistrate to make said original and two copies of the search warrant or failure
       to endorse thereon the date and time of issuance and the name of the officer to whom
       issued, or the failure of the serving officer where possible to leave a copy with the
       person or persons on whom the search warrant is being served, shall make any search
       conducted under said search warrant an illegal search and any seizure thereunder
       an illegal seizure.

Tenn. R. Crim. Proc. 41(c) (2003) (emphasis added).


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       We have interpreted these rules strictly; the language is plain and the requirements are
mandatory. Coffee, 54 S.W.3d at 233-34. For instance, in Coffee, this Court found that the judicial
commissioner’s failure to retain a copy of the search warrant, in violation of Rule 41(c), required
suppression of the evidence seized as a result of the execution of the search warrant. Id.

        Review of the transcript in this case indicates that the trial court found that the search warrant
did not contain an endorsement of the hour of its issuance, as required by Rule 41(c). Although the
trial court noted the requirements had not been met, the court reasoned that the endorsements of the
time, date and officer were required “to show that [the search warrant] was executed without delay.”
The court continued, “[These endorsements were] to show that it was executed subsequent probably
to the issuance, and it seems that all the constitutional rights, Fourth Amendment rights, are
protected and displayed on the written parts of this warrant and affidavit.” The trial court is
eminently correct in its rationale – that the pertinent part of Rule 41(c) is designed to ensure that
if a search warrant is executed prior to its issuance, such discrepancy will be apparent on the face
of the warrant. Because the hour was not endorsed by the magistrate on the search warrant in this
case, the warrant fails to explicitly show that it was issued first – then executed. Therefore, the
search warrant fails to meet the requirements as set forth in Tennessee Rule of Criminal Procedure
41(c). Under the explicit provisions of Rule 41(c) such failure “shall make any search conducted
under said search warrant an illegal search and any seizure thereunder an illegal seizure.”

                                            IV. Conclusion

        We conclude that the search warrant in this case as certified by the clerk is part of the record
and therefore can be considered upon review. Furthermore, we conclude that under the facts of this
case, the search warrant on its face did not meet the requirements of Tennessee Rule of Criminal
Procedure 41(c). Therefore, the warrant was invalid, the search was illegal, and the evidence
obtained thereby inadmissible. Accordingly, we reverse the judgment of the Court of Criminal
Appeals holding that the search warrant was not a reviewable part of the appellate record and dismiss
the indictment upon the basis expressed herein. Costs of this appeal are taxed to the State of
Tennessee.



                                                         ___________________________________
                                                         ADOLPHO A. BIRCH, JR., JUSTICE




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