         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   December 16, 2003 Session

             STATE OF TENNESSEE v. JIMMY DAVID MCELROY

                  Direct Appeal from the Criminal Court for McMinn County
                     Nos. 01-554, 01-555, 01-556  R. Steven Bebb, Judge


                                   No. E2003-00943-CCA-R9-CD
                                         January 20, 2004

The state in this interlocutory appeal challenges the McMinn County trial court’s order granting the
defendant’s motion to suppress evidence seized pursuant to a search warrant. In suppressing the
evidence, the trial court found the informant’s information in the affidavit referred to a different
property location than the property authorized to be searched; therefore, the trial court found a lack
of probable cause for the issuance of the search warrant. Upon review of the record and the
applicable law, we affirm the trial court’s order granting the motion to suppress.

    Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and NORMA
MCGEE OGLE , JJ., joined.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Jerry N. Estes, District Attorney General; and Charles W. Pope, Jr., Assistant District Attorney
General, for the appellant, State of Tennessee.

Charles C. Burks, Jr., Knoxville, Tennessee, for the appellee, Jimmy David McElroy.

                                               OPINION

        The defendant was charged with possession of methamphetamine with intent to sell, a Class
C felony; possession of more than ten pounds of marijuana with intent to sell, a Class D felony; and
possession of drug paraphernalia, a Class A misdemeanor. See Tenn. Code Ann. §§ 39-17-417(c)(2)
(methamphetamine), -417(g)(2) (marijuana), -425(a) (drug paraphernalia). The defendant subsequently
filed a motion to suppress evidence seized pursuant to an invalid search warrant, and, following a
hearing, the trial court granted the motion. The trial court and this court granted the state’s application
for interlocutory review. See Tenn. R. App. P. 9.

                           I. SEARCH WARRANT AND AFFIDAVIT

       On December 18, 2000, Detective Ben Graves of the McMinn County Sheriff’s Department
submitted an affidavit in support of a search warrant in which he represented that:
       there is probable cause to believe that Jimmy David McElroy, a convicted felon, is
       in possession of marijuana for personal use and for resale. He is conducting these
       activities in exchange for monies and property in trade to include weapons at his
       residence located at 317 Co Rd 356, in the County of McMinn, State of Tennessee,
       and further described on page (4) four of this affidavit. Jimmy David McElroy is also
       the owner of a vehicle repair shop located approximately 1/8th of a mile east from
       his residence, and further described on page (5) five of this affidavit. This business
       is occupied by an employee of Jimmy David McElroy’s identified as Tony Eugene
       Youngblood. Tony Eugene Youngblood has been present during transactions and has
       knowledge of the illegal activities listed. Your affiant says there is probable and
       reasonable cause to believe the said properties and assorted vehicles located at these
       locations are used for storage and transportation of the marijuana.
       ...

       On 12/18/00, this affiant received information from a confidential informant stating
       that he/she has been in the residence of Jimmy David McElroy, located off of Co Rd
       #317, and further described on page (4) four of this affidavit, within seventy two
       hours of 12/18/00 and has observed Jimmy David McElroy in possession of
       marijuana. The marijuana is packaged in plastic containers for resale to individuals.
       This informant has furnished information in the past that has led to the arrest and
       conviction of at least (3) three drug offenders involved in the sale and use of illegal
       drugs and led to the seizure of (2) two kilos of cocaine. Upon investigation of these
       subjects it is believed by this affiant that this information to be [sic] true and
       accurate. . . .

       Wherefore, as such agent and officer, acting in the performance of my duty, I pray the
       Court is[s]ue a warrant authorizing a search of the properties of Jimmy David
       McElroy, located on Co Rd 317, and further described on page(s) (4) four and (5)
       five of this affidavit, for marijuana.

(Emphasis added). A photograph of both the defendant’s garage and residence, a photograph of his
residence, and a photograph of his garage appear on pages four and five of the affidavit.

        A search warrant was subsequently issued authorizing a search of the house or buildings and
the vehicles on the defendant’s premises in McMinn County and “[f]urther [d]escribed on pages 4
& 5 of the [a]ffidavit 317 Co. Rd. 356, McMinn County, State of Tennessee.”

                               II. TRIAL COURT’S FINDINGS

       No testimony was presented at the suppression hearing. In its written order granting the
defendant’s motion to suppress, the trial court found the affidavit lacked probable cause for the
issuance of a search warrant at 317 County Road 356. The court noted the informant indicated he
observed the drugs “off Co Rd 317,” whereas the defendant’s residence at the time the search



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warrant was issued was “box 317 Co Rd 356, in the County of McMinn, State of Tennessee.” The
trial court further wrote:

       The Court was presented with the question of whether the information on its face
       provided probable cause for the issuance of the search warrant. To overcome this
       incorrect information the Court would have to surmise: (1) the informant said Co.
       Rd. 317 as set forth in the affidavit; or, (2) the informant said Co. Rd. 356 and the
       affiant transcribed it incorrectly; or, (3) the informant did not say either and the
       affiant interjected this information in the affidavit attributing it to the informant.
       While this Court could try to assume that the error was clerical, the Court can look
       only to the information supplied by the affiant (representing it to be the words of the
       informant) to determine if it meets the standard set forth in the case law and the
       Constitution of the State of Tennessee. This Court can not and will not make that
       assumption in order to overcome the apparent lack of probable cause shown of [sic]
       this affidavit.

                                 III. STANDARD OF REVIEW

         The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). However, the application of the law to the facts found by
the trial court are questions of law that this court reviews de novo. State v. Daniel, 12 S.W.3d 420,
423 (Tenn. 2000). Here, the facts are undisputed, and the issue presented is purely a question of law;
thus, our review is de novo.

                           IV. VALIDITY OF SEARCH WARRANT

       The state contends the portion of the affidavit referencing the defendant’s address on County
Road 317 was a clerical or typographical error which did not invalidate the search warrant. Based
upon the limited record before us, we are unable to reach this conclusion.

A. Requirements of a Search Warrant

        The Fourth Amendment warrant requirement demands that a probable cause determination
be made by a neutral and detached magistrate. State v. Valentine, 911 S.W.2d 328, 330 (Tenn.
1995); State v. Jacumin, 778 S.W.2d 430, 431 (Tenn. 1989); State v. Moon, 841 S.W.2d 336, 338
(Tenn. Crim. App. 1992). Probable cause “exists when facts and circumstances demonstrated by an
underlying affidavit are sufficient in themselves to warrant a person of reasonable caution to believe
that certain items are the fruits of illegal activity and are to be found at a certain place.” State v.
Norris, 47 S.W.3d 457, 468 (Tenn. Crim. App. 2000). If probable cause is absent, the magistrate is
not empowered to issue a warrant. When reviewing the issuance of a search warrant, this court must
determine whether the magistrate had a substantial basis for concluding that a search warrant would
uncover evidence of wrongdoing. Jacumin, 778 S.W.2d at 432. The magistrate’s judgment is
entitled to great deference on appeal. Id. at 431-32.


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         The issue in this case is a narrow one; namely, whether the informant’s alleged reference in
the affidavit to observing drugs at the defendant’s residence “off Co Rd #317” was insufficient to
establish probable cause for the search of the defendant’s residence at “317 Co Rd 356.” The issue
is not whether the search warrant authorization sufficiently described the place to be searched. See,
e.g., State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993). Although the authorization to search “317
Co Rd 356” was a sufficient description, that is not the issue.

B. Analysis

        Initially, we note the issuance of this search warrant was dependent upon the information
furnished by the informant as set out in the officer’s affidavit. See Moon, 841 S.W.2d at 338.
Absent this information, the officer’s affidavit was patently insufficient to establish probable cause
to search the defendant’s residence at 317 County Road 356.

        Unquestionably, clerical or typographical errors will not invalidate an otherwise valid search
warrant absent a showing of prejudice to the defendant. Collins v. State, 184 Tenn. 356, 199 S.W.2d
96, 97 (1947) (holding conflict in dates of affidavit, warrant, and filing notation did not invalidate
warrant); State v. Barbara Faye Powell, et al., No. W1999-01825-CCA-R3-CD, 2000 Tenn. Crim.
App. LEXIS 385, at **8-9 (Tenn. Crim. App. May 11, 2000) (holding conflicting dates in affidavit
and warrant did not invalidate warrant); see also United States v. Jones, 208 F.3d 603, 608 (7th Cir.
2000) (holding minor conflicts in the addresses in affidavit and search warrant were not fatal to warrant
under the circumstances); Wangrow v. United States, 399 F.2d 106, 115 (8th Cir.) (same), cert.
denied, 393 U.S. 933 (1968); Champion v. State, 919 S.W.2d 816, 818 (Tex. App. 1996) (same).
In the case at bar, the conflicts concerned the property location and were not minor because two
separate roads were mentioned. Furthermore, although the reference to County Road 317 may well
have been a clerical or typographical error, the state has utterly failed to establish such an error. At
the hearing on the motion to suppress, the state presented no testimony;1 thus, just as the trial court,
we too are unable to assume that this was a clerical transcription error.2

        We are, therefore, left with the informant’s statement that he/she observed the drugs off
County Road 317, not County Road 356. Although Detective Graves states in the first part of the
affidavit that the defendant resides at 317 County Road 356, this is inconsistent with the informant’s
statement. Furthermore, there is no attempt in the affidavit to explain the discrepancy. We also note
that Detective Graves in the latter part of the affidavit states the defendant’s property is on “Co Rd
317,” which is inconsistent with his earlier statement but consistent with the informant’s statement.
Although the informant’s information was that the residence was located off County Road 317 “and


         1
           The transcript of the motion hearing reflects there was an earlier hearing which was “continued . . . to see if
[the state] had any more law. . . .” There is no written transcript of the earlier hearing in the record. In the event there
was testimony at the ea rlier hearing, it was the state’s respo nsibility, as the appellant, to provide a record on appeal which
conveys a fair and com plete account of wh at transp ired. Tenn. R. A pp. P . 24(b ); State v. Taylor, 992 S.W.2d 941, 944
(Tenn. 1999 ).

         2
          It is possible there is no County Road 31 7 in McM inn County; however, in the absence of testimony, we are
unable to make this assumption.

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further described on page (4) four of this affidavit,” we are unable to conclude, based upon the
affidavit, that the informant actually saw and identified the attached photographs on page 4.

       In summary, the state has failed to establish that the informant allegedly saw the drugs at 317
County Road 356 and has failed to establish the affidavit contained a clerical error. Thus, we must
assume the informant’s reference was to County Road 317. The information furnished by the
informant as set forth in the officer’s affidavit was insufficient to establish probable cause for the
search on County Road 356.

       Accordingly, we affirm the judgment of the trial court.



                                                       ____________________________________
                                                       JOE G. RILEY, JUDGE




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