         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 18, 2001 Session

                  STATE OF TENNESSEE v. RONALD STANLEY

                 Direct Appeal from the Criminal Court for Davidson County
                            No. 98-D-2923    Steve Dozier, Judge



                      No. M2000-00790-CCA-R3-CD - Filed May 11, 2001


The Defendant pled guilty to selling over twenty-six grams of cocaine, possession with intent to sell
over 300 grams of cocaine, and possession with intent to sell between ten and seventy pounds of
marijuana. As to his conviction for possession with intent to sell over 300 grams of cocaine, the
Defendant reserved the following certified question of law: whether the search warrant was void for
execution more than 120 hours after issuance. We hold that the five-day period in which a search
warrant must be executed is to be computed using calendar days rather than hours. Thus, a search
warrant is valid if executed by midnight of the fifth day after its issuance, with the calculation of
days to exclude the day of issuance. We further hold that the search warrant in this case was
properly executed within the five-day period and therefore affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
JERRY L. SMITH, JJ., joined.

Kenneth Quillen, Nashville, Tennessee, for the appellant, Ronald Stanley.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General,
Victor S. Johnson, III, District Attorney General; and Derrick L. Scretchen, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        On November 23, 1998, the Davidson County Grand Jury returned a nine-count indictment
against the Defendant, Ronald Stanley, charging him with the sale of twenty-six or more grams of
cocaine; the delivery of twenty-six or more grams of cocaine; possession with intent to sell or deliver
300 grams or more of cocaine; simple possession of marijuana; felony possession of a weapon; two
counts of possession of drug paraphernalia; theft of cable services; and possession with intent to sell
or deliver between ten pounds, one ounce and seventy pounds of marijuana. In July 1999, the
Defendant filed a motion to suppress evidence upon which the indictment was based and an amended
motion to suppress the evidence; in August 1999, the Defendant filed a second amended motion to
suppress the evidence. On August 18, 1999, the trial court conducted a suppression hearing,1 and
on September 23, 1999, the trial court denied the Defendant’s motion to suppress by written order.

        On March 9, 2000, the Defendant pled guilty to count one: selling over twenty-six grams of
cocaine; count three: possession with intent to sell over 300 grams of cocaine; and count eight:
possession with intent to sell between ten and seventy pounds of marijuana. He received concurrent
sentences of eighteen years in count three, eight years in count one, and three years in count eight,
to be served in the Tennessee Department of Corrections. As to count three of the indictment,
possession with intent to sell over 300 grams of cocaine, the Defendant reserved the following
certified question of law: “whether the search warrant was void for execution more than 120 hours
after issuance.” See Tenn. R. Crim. P. 37(b)(2)(i). The Defendant now appeals the certified
question of law. We conclude that the search warrant in this case was valid and therefore affirm the
Defendant’s conviction in count three of the indictment.

         The Defendant and the State agree that the search warrant that is the subject of this appeal
was issued at 12:00 a.m. (midnight) on March 13, 1998 and executed at 10:00 a.m. on March 18,
1998, 130 hours after its issuance. Tennessee Code Annotated § 40-6-107 provides that “[a] search
warrant shall be executed and returned to the magistrate by whom it was issued within five (5) days
after its date, after which time, unless executed, it is void.” Tenn. Code Ann. § 40-6-107(a); see also
State v. Evans, 815 S.W.2d 503, 505-506 (Tenn. 1991). Similarly, Tennessee Rule of Criminal
Procedure 41(d) mandates that a search warrant “be executed within five days after its date.” In this
case of first impression in Tennessee, we must determine how that five-day period is to be computed.

        The Defendant contends in his brief that the time for execution of a warrant should be
calculated in hours2 and thus that the five-day rule should be construed to mean that “probable cause
no longer exists 120 hours after issuance of a search warrant.” In this case, because the search
warrant issued on March 13, 1998 was executed 130 hours after its issuance, the Defendant argues
that the warrant was void at the time of its execution. The Defendant therefore contends that all
evidence seized pursuant to the March 13, 1998 search warrant should be suppressed.

        Although this case presents a novel question for our consideration, we are guided by some
basic principles of law in our analysis of the issue. Generally, “[i]n matters of statutory construction
the role of this [C]ourt is to ascertain and give effect to the intent of the legislature.” State v.
Webster, 972 S.W.2d 701, 703 (Tenn. Crim. App. 1998). Moreover, the general rule for
computation of time is “that the law knows no fractions of a day.” Allen v. Effler, 235 S.W.2d 67,
68 (Tenn. 1921). Finally, we note that this Court has stated, “[T]he expression ‘within’ a certain


         1
             A transcript of the suppression hearing is not included in the record.
         2
           A widely use d legal treatise in Tennesse e opines, “Presumably, the officers h ave exa ctly 120 h ours with in
which to execu te the warra nt.” Dav id Louis Raybin, Tennessee Criminal Practice and Proced ure § 18.124 n.2 (1984 ).

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time embraces the last day of the time so limited, and the last day is counted in its entirety.” State
v. Emmett Ronnie Hammonds, No. 967, 1991 WL 46629, at *1 (Tenn. Crim. App., Apr. 5, 1991,
Knoxville) (citing Union Trust Co. v. Chattanooga Elec. Ry. Co., 47 S.W. 422 (1898)).

         We hold that the five-day period in which a search warrant must be executed under
Tennessee Code Annotated § 40-6-107 and Rule 41(d) of the Tennessee Rules of Criminal Procedure
is to be computed using calendar days rather than hours. Thus, a search warrant is valid if executed
by midnight of the fifth day after its issuance, with the calculation of days to exclude the day of
issuance. The first of the five days to be counted in this case was March 14, 1998, the day after the
March 13, 1998 date of issuance. Had the warrant not been executed by midnight on March 18,
1998, the warrant would have been void. However, the execution of the warrant occurred at 10:00
a.m. on March 18, 1998, and thus the warrant was lawfully executed.

        This method of computation is consistent with that adopted in other jurisdictions confronted
with this issue. See, e.g., People v. Clayton, 22 Cal. Rptr. 2d 371, 374 (Cal. Ct. App. 1993); United
States v. La Monte, 455 F. Supp. 952, 957 n.6 (E.D. Pa. 1978); State v. Durand, 461 So. 2d 1090,
1093 (Ct. App. La. 1984); Gonzalez v. State, 768 S.W.2d 436, 438 (Tex. App. 1989); State v.
Anonymous, 480 A.2d 600, 603 n.5 (Conn. 1984). Furthermore, had the legislature intended that
the time for execution of a search warrant be computed in terms of hours rather than days, it could
have drafted rules or statutes reflecting a period of 120 hours rather than five days.

       We conclude that a search warrant expires five days after its issuance, to be calculated in a
manner consistent with this opinion. Thus, we conclude that the search warrant in this case was
lawfully executed. We therefore AFFIRM the judgment of the trial court.



                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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