        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                                March 1, 2011 Session

    STATE OF TENNESSEE v. BOB J. SPIVEY AND MISTY BUCKNER

                Direct Appeal from the Circuit Court for Dyer County
                 Nos. 09-CR-486; 09-CR-486A      Lee Moore, Judge


              No. W2010-01853-CCA-R3-CD - Filed September 19, 2011


The State appeals from the Dyer County Circuit Court’s dismissal of two indictments
charging the Defendant-Appellees, Bob J. Spivey and Misty Buckner, with possession with
intent to sell or deliver more than 0.5 grams of a Schedule II controlled substance, a Class
B felony. Both defendants moved to suppress evidence obtained during a police search of
the Buckner home. The trial court granted these motions upon finding that the search
warrant inadequately described the property to be searched, and the charges against Spivey
and Buckner were dismissed. In this appeal, the State claims that the trial court erred by
granting the motions to suppress. Upon review, we affirm the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
R OBERT W. W EDEMEYER, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; C.
Phillip Bivens, District Attorney General; and Lance E. Webb, Assistant District Attorney
General, for the Appellant, State of Tennessee.

Noel H. Riley, II, Dyersburg, Tennessee, for the Defendant-Appellee, Bob J. Spivey.

James E. Lanier, District Public Defender; H. Tod Taylor, Assistant Public Defender,
Dyersburg, Tennessee, for the Defendant-Appellee, Misty Buckner.

                                        OPINION

       Background. Buckner and Spivey lived together at Buckner’s home, one of two
single-story buildings located at 506 Christie Street. The building Buckner rented was blue
and the other building, rented by an individual unrelated to these proceedings, was tan. Upon
execution of a search warrant, the police found crack cocaine, a handgun, and a digital scale
at the Buckner home. Buckner and Spivey were indicted and Buckner1 filed a motion to
suppress all evidence obtained during the search of the Buckner home. Buckner argued the
search warrant was defective because it authorized the search of both rental buildings on the
property.

       Suppression Hearing. The search warrant, admitted into evidence as exhibit three,
described the property to be searched as follows:

       506 Christie Street is a single story, single family dwelling with tan siding.
       The residence can be found by traveling south on Main Street from downtown
       Dyersburg, TN. Continue south until reaching Christie Street. Turn west on
       Christie Street and 506 Christie Street sits on the northeast corner of Christie
       Street and Brigance Avenue.

The search warrant was accompanied by an affidavit signed by Officer Mason McDowell of
the Dyersburg Police Department. The affidavit provided, in pertinent part, that an informant
saw a controlled substance “inside the residence of 506 Christie Street.” The informant
reported that the residence belonged to Spivey. Buckner’s name is not mentioned in the
search warrant or the affidavit.

        Patricia Sollis, the owner of the property at 506 Christie Street, testified that the
property contained two buildings, 506 Christie (“the blue building”) and 506 Christie Rear
(“the tan building”). Sollis explained that when the search warrant was executed, Buckner
lived in the blue building and another renter lived in the tan building. Sollis denied telling
Officer McDowell prior to the execution of the search warrant that the tan building was not
occupied by a renter. Sollis told Officer McDowell that the tan building was not occupied
“a couple of months” before the suppression hearing. Sollis was certain it was after the search
warrant was executed because “we didn’t even know [about the execution of the search
warrant] until we went out there and our door was broke in . . . . And at that time [her
husband] called the police to see about getting the door replaced.” She said the Register’s
Office listed the two buildings on her property as 506 Christie and 506 Christie Rear.

        Prior to the search warrant application for 506 Christie Street, Officer McDowell
conducted an online search of the property through the State of Tennessee Property
Assessment Data Page. The search revealed that two buildings were listed under the address
of 506 Christie Street. Officer McDowell examined the real estate assessment data provided
by the State of Tennessee, which described the tan building as a “detached garage unfinished.”

       1
           Spivey’s motion to suppress was not filed until after Buckner’s motion to suppress was granted.

                                                     -2-
Officer McDowell said that he spoke with Sollis or her husband before the search warrant was
executed to confirm that neither Buckner nor Spivey had access to the tan building. He stated
that “from that point on he was not interested in the search of [the tan] property.”

        Officer McDowell conceded that he mis-read the satellite photograph and, as a result,
the search warrant erroneously described the Buckner home as a tan building. Officer
McDowell explained, “I could see in the satellite photography that the garage was tan. It was,
I guess, my assumption that the residence was tan as well.” Asked whether he had “passed by
this residence and looked at it” prior to the search warrant, Officer McDowell replied:

       No, I had not specifically before we got ready to do this and that’s strictly for
       surveillance reasons . . . I was familiar with the area. I was familiar with the
       house. I knew where it was but no, I did not go down there to get a color of it
       for fear of ruining our investigation.

Officer McDowell did not realize that there was a discrepancy in the color of the building in
the search warrant. From his perspective, “there was only one single family dwelling located
on the property and the second [building] was a detached garage.” Officer McDowell
believed, “barring the wrong color,” he searched the residence described in the search
warrant. He did not enter or search the tan building.

      The trial court granted the motion to suppress by written order. The trial court
excluded the evidence based on the following:

       The Court finds that the property was adequately described as 506 Christie
       Street. However, the officer made a mistake as to the color of the residence to
       be searched. Although Officer McDowell believed the rear building to be an
       undetached [sic] garage and states under oath that it was not his intention to
       search that area, the search warrant actually shows a tan building at 506
       Christie. It is undisputed from Ms. Sollis’[s] testimony that the tan building
       was, in fact, being occupied by a renter in August of 2009. . . . It is clear to the
       Court that there was a slight mistake made in colors in this case. Otherwise the
       affidavit appears to be proper. If the property known as 506 Christie Rear had
       not had someone living there or if it was simply a garage the Court would feel
       that the description was adequate. The property is described accurately enough
       for the officer conducting the search to search the blue house. The description
       of the property in the warrant, however, is not sufficient to prevent the officers
       from searching the tan house at 506 Christie which would have been the
       premises of a totally different person. Although it is an unfortunate mistake and
       the Court hesitates to suppress evidence in this case, the Court does not feel that

                                               -3-
       Tennessee and United States Constitutional requirements are met so that the
       search warrant would be valid.

       Following the grant of the motion to suppress, the trial court entered an order
dismissing the indictment against Buckner. The order stated that the prosecution would be
unable to proceed with its case without the suppressed evidence. Spivey later filed his motion
to suppress based on the same grounds. The trial court granted Spivey’s motion to suppress
and entered an order dismissing Spivey’s indictment. The State filed a timely notice of appeal
and a motion to consolidate these two cases. This court determined that Buckner’s and
Spivey’s cases involved common questions of law and fact; therefore, it granted the State’s
motion pursuant to Rule 16(b) of the Tennessee Rules of Appellate Procedure.

                                           ANALYSIS

       The State claims the trial court erred by granting the motions to suppress. The State
contends the search warrant’s description of the property was adequate because it specified
the location of Buckner’s building on the property. The State also asserts that “any ambiguity
in the description was cured by the executing officer’s knowledge of the place to be
searched.” In response, Buckner argues that the search warrant was defective because it
allowed the police to search both residences on the property, including the residence of
someone who had no connection to the criminal investigation. She contends that Officer
McDowell’s knowledge of the property did not cure this defect because he was not informed
that the tan building was occupied by a renter. Spivey claims the search warrant only
authorized the search of a tan residence; therefore, the police were prohibited from searching
the blue building where Buckner lived.

        Standard of Review. The standard of review applicable to suppression issues
involves a mixed question of law and fact. State v. Garcia, 123 S.W.3d 335, 342 (Tenn.
2003). “[A] trial court’s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise.” State v. Cox, 171 S.W.3d 174, 178 (Tenn. 2005) (quoting
State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The Tennessee Supreme Court explained
this standard in State v. Odom:

       Questions of credibility of the witnesses, the weight and value of the evidence,
       and resolution of conflicts in the evidence are matters entrusted to the trial
       judge as the trier of fact. The party prevailing in the trial court is entitled to the
       strongest legitimate view of the evidence adduced at the suppression hearing
       as well as all reasonable and legitimate inferences that may be drawn from that
       evidence. So long as the greater weight of the evidence supports the trial
       court’s findings, those findings shall be upheld.

                                                -4-
Odom, 928 S.W.2d at 23.

        Both the federal and state constitutions require that a search warrant particularly
describe the place to be searched. See U.S. Const., amend. IV; Tenn. Const., art. I, § 7. This
requirement is codified under Tennessee Code Annotated section 40-6-103, which mandates
that “[a] search warrant can only be issued on probable cause, supported by affidavit, naming
or describing the person, and particularly describing the property, and the place to be
searched.” See also Tenn. R. Crim. P. 41(c) (stating that “the magistrate shall issue a warrant
identifying the property and naming or describing the person or place to be searched”). The
Tennessee Supreme Court has stated that the legislature’s use of the word “particularly” in
section 40-6-103 shows that the legislature “intended the search warrant to be clear of
ambiguity as to the place to be searched.” State v. Vanderford, 980 S.W.2d 390, 404 (Tenn.
Crim. App. 1997) (quoting Dolen v. State, 216 S.W.2d 351, 353 (Tenn. 1948)).

       In Vanderford, this Court discussed why the search warrant must describe with
particularity the property to be searched:

       First, this requirement protects the accused from being subjected to an
       unreasonable search and/or seizure. Williams v. State, 196 Tenn. 630, 632, 270
       S.W.2d 184, 185 (1954). Second, this requirement “prevent[s] the officer from
       searching the premises of one person under a warrant directed against those of
       another.” Squires v. State, 525 S.W.2d 686, 690 (Tenn. Crim. App.), cert.
       denied (Tenn. June 9, 1975).

Id. In further addressing the particularity requirement, the Tennessee Supreme Court set forth
the following test to determine whether a search warrant adequately described the place to be
searched:

       The requirement of particular description of the place to be searched is met by
       a description which particularly 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 discretion.

State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993) (citing Hatchett v. State, 346 S.W.2d 258,
259 (Tenn. 1961); State v. Cannon, 634 S.W.2d 648, 650 (Tenn. Crim. App. 1982)).
Moreover, “[t]he particularity requirement is satisfied if the place to be searched is described
in such a manner that the officer conducting the search of the premises of one person under
a warrant would be prevented from searching instead the premises of another person.” State
v. McCary, 119 S.W.3d 226, 247 (Tenn. Crim. App. 2003) (citations omitted); see also Lea

                                              -5-
v. State, 181 Tenn. 378, 181 S.W.2d 351, 352 (1944) (noting that the place to “be searched
should be designated with sufficient accuracy to prevent the officer from searching the
premises of one person under a warrant directed against those of another”); State v. Bass, 153
Tenn. 162, 281 S.W. 936, 937 (1926) (concluding that the particularity requirement is met by
a description which particularly points to a “definitely ascertainable place so as to exclude all
others”).

        The State argues that the description in the search warrant was sufficient because the
Buckner home, the blue building, was the only building located on the corner of Christie
Street and Brigance Avenue. In support of its claim, the State argues the map of the property
shows that the tan building does not border Christie Street. This argument is unavailing. As
noted by the trial court, “[t]he property is described accurately enough for the officer
conducting the search to search the blue house [the Buckner home].” However, this does not
satisfy the particularity requirements of Bass, Vanderford, or Smith. The requirement of
particularity means that the description must “particularly point[ ] to a definitely ascertainable
place so as to exclude all others, and enable[ ] the officer to locate the place to be searched
with reasonable certainty without leaving it to his discretion.” Smith, 868 S.W.2d at 572
(citing Hatchett v. State, 346 S.W.2d 258, 259 (Tenn. 1961); State v. Cannon, 634 S.W.2d
648, 650 (Tenn. Crim. App. 1982)). In short, even though the search warrant provided an
adequate description of the subject property, the same description enabled law enforcement
to search another property, the tan building, that was occupied by someone unrelated to these
proceedings in violation of that person’s rights under the Fourth Amendment.

       In the alternative, the State, citing State v. Larry Burks, No. E1999-00571-CCA-R3-
CD, 2000 WL 1337175 (Tenn. Crim. App., at Knoxville, Sept. 18, 2000), contends that the
defect in the search warrant was cured by Officer McDowell’s personal knowledge that the
defendants lived in the blue building. In Larry Burks, the search warrant directed the officers
to search the defendant’s tan mobile home. Id. at *2. The defendant’s mobile home was
actually a grayish color. Id. at *1. The defendant’s brother owned a tan and white mobile
home that was located two hundred feet away from the defendant’s mobile home. Id. The
defendant argued the search warrant failed to particularly describe his residence because the
officers could have also searched his brother’s mobile home. Id. at *3. In rejecting the
defendant’s claim, this Court concluded that the search warrant’s error regarding the color of
the defendant’s mobile home was “insignificant.” Id. Citing State v. Bostic, 898 S.W.2d 242,
246 (Tenn. Crim. App. 1994), and United States v. Williamson, 1 F.3d 1134, 1136, (10 th Cir.
1993), this Court noted the executing officer “knew exactly which was the home of the
defendant” and that the color description did not create the possibility that the officer would
search the wrong home. Id.




                                               -6-
        Unlike Larry Burks, whether Officer McDowell had personal knowledge that Buckner
and Spivey lived in the blue building is not borne out by the record. To be clear, the officer
in Larry Burks testified at the suppression hearing that he personally knew the defendant,
knew the defendant’s whole family, and knew the exact location of the Burks’ house because
it was “right above [his] house about a half a mile.” Larry Burks at *2. Here, although
Officer McDowell was generally familiar with the location of the Buckner home, there was
no testimony that Officer McDowell personally knew Buckner, Spivey, or where they lived.
Officer McDowell’s description of the property was based on faulty real estate data which
described the tan building as a “detached garage unfinished.” Based on the color of this
building, Officer McDowell assumed that the Buckner home was also tan.

       We further note that Officer McDowell testified that he spoke with Sollis or her
husband to confirm that Buckner and Spivey did not have access to the tan building.
However, Sollis insisted that she did not speak with the police until after the execution of the
search warrant. Regardless of this discrepancy, the record shows that Officer McDowell had
no personal knowledge of the subject property. Given these facts and circumstances, Larry
Burks is not applicable to the present case.

        Based on the above authority and analysis, we agree with the trial court, and conclude
that the search warrant was unconstitutional because it failed to adequately specify the
property to be searched. The search warrant described the residence as a single story, single
family dwelling with tan siding located at 506 Christie Street on the northeast corner of
Christie Street and Brigance Avenue. It failed, however, to distinguish the subject building
from a second building on the property, the only one that was actually tan. This is fatal to the
search warrant because it authorized law enforcement to search the tan building, which was
occupied by a resident unrelated to the investigation. Accordingly, the State is not entitled
to relief.

                                       CONCLUSION

       Based on the foregoing, the judgments of the trial court are affirmed.


                                                    ________________________________
                                                    CAMILLE R. McMULLEN, JUDGE




                                              -7-
