         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.

                                            -3-
              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




                                            -4-
