                   IN THE SUPREME COURT OF TENNESSEE

                              AT JACKSON

                                                          FILED
                                                      September 28, 1998
STATE OF TENNESSEE,                      )   For Publication
                                         )             Cecil Crowson, Jr.
     Appellee,                           )   Filed:    Appellate C ourt Clerk
                                         )
v.                                       )   Madison County
                                         )
DENNIS KEITH and                         )   Hon. Whit LaFon,
TIMOTHY COLLINS                          )        Judge
                                         )
     Appellants.                         )   No. 02-S-01-9604-CC-00035




                          DISSENTING OPINION



           I respectfully dissent from the majority’s judgment that

the search warrant was properly supported by affidavit.               In my

view, an “affidavit” which does not show on its face that it was

sworn to is no affidavit at all.     Rather, it is merely an unsworn

writing.



           The   State   attempts   to   correct   this   deficiency      by

submitting proof that the supporting affidavit had been sworn. But

the fact remains that at the time of the search, the search warrant

was not “supported by affidavit” as required by Tenn. Code Ann.

§ 40-6-103 (1997), nor “supported by oath or affirmation” as

required by the Fourth Amendment to the United States Constitution.

If the occupant of the subject property had inspected the warrant

as it was being executed, he could have rightfully refused to allow

the search.   The constitutional right to so refuse an unreasonable
search should not be later extinguished simply because the State

corrected its mistake after the fact.



          The rule the majority promulgates today is closely akin

to the “good faith” exception to the exclusionary rule:   as long as

law enforcement officers act honestly and reasonably, then the

fruits of their search will be admitted into evidence even though

the search warrant was not supported by probable cause.      United

States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed.2d 677

(1984).   We have not yet addressed the good faith exception in

Tennessee, and I am wary of even the slightest, albeit oblique,

movement in that direction.



          Therefore, I would follow Commonwealth v. Dozier, 366

N.E.2d 1270 (Mass. App. Ct. 1977).       In that case, a statute

required that the affidavit supporting the search warrant be sworn

before a justice, special justice, clerk, or assistant clerk.

Because the jurat was unsigned, the seized evidence was held

properly suppressed.   Id. at 1270.



          In conclusion, this Court once stated:


                    The use of printed forms has
               made the procurement of a search
               warrant   the    merest    formality,
               considering      the     fundamental
               constitutional    right   which   the
               search invades.      Certainly, this
               Court can do no less than to require
               that the few blank spaces be filled
               in, and the other details of the
               formality be carried out with care
               and precision.



                                2
Everett v. State, 182 Tenn. 22, 28, 184 S.W.2d 43, 45 (1944)

(finding an affidavit deficient because the month was omitted from

the date of the alleged offense).         Because I adhere to this

principle,   I   must   respectfully   dissent   from   the   majority’s

decision.    I would find it necessary to suppress the evidence

seized pursuant to this defective search warrant.




                                 _______________________________
                                 ADOLPHO A. BIRCH, JR., Justice




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