         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE         FILED
                          AUGUST 1999 SESSION
                                                 September 24, 1999

                                                 Cecil Crowson, Jr.
                                                Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )    NO. 01C01-9812-CC-00478
      Appellee,                    )
                                   )    MAURY COUNTY
VS.                                )
                                   )    HON. ROBERT L. JONES,
JACQUELINE STEPHERSON,             )    JUDGE
                                   )
      Appellant.                   )    (Certified Question of Law)



FOR THE APPELLANT:                      FOR THE APPELLEE:

JOHN S. COLLEY III                      PAUL G. SUMMERS
710 N. Main Street                      Attorney General and Reporter
P. O. Box 1476
Columbia, TN 38402-1476                 LUCIAN D. GEISE
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        T. MICHAEL BOTTOMS
                                        District Attorney General

                                        JESSE DURHAM
                                        LAWRENCE R. NICKELL, JR.
                                        Asst. District Attorneys General
                                        10 Public Square
                                        P. O. Box 1619
                                        Columbia, TN 38402-1619




OPINION FILED:



REVERSED AND DISMISSED



JOE G. RILEY, JUDGE
                                   OPINION


       Defendant, Jacqueline Stepherson, pled guilty to possession of cocaine over

0.5 grams with intent to sell and possession of marijuana over ½ ounce with intent

to sell. Pursuant to a plea agreement, defendant received concurrent suspended

sentences of eight (8) years and one (1) year, respectively. The defendant with the

consent of the state and the trial court reserved a certified question of law relating

to the search and seizure of the drugs and certain banking records. See Tenn. R.

Crim. P. 37(b)(2)(i). The issues presented on appeal are as follows:

       1.     whether the search warrant was invalid when the
              issuing magistrate designated an officer who was not
              present at the time of issuance as the officer to whom
              it was delivered for execution;

       2.     whether the search warrant affidavit provided sufficient
              probable cause for issuance;

       3.     whether the executing officers sufficiently complied with
              the “knock and announce” requirement; and

       4.     whether violation of the Financial Records Privacy Act
              requires suppression of the financial records seized
              from the bank.

We find merit only as to the first issue. Although the result may indeed be harsh,

the plain and unambiguous language of Tenn. R. Crim. P. 41(c) requires us to

REVERSE and DISMISS.



                               SEARCH WARRANT



       The search warrant affidavit was executed shortly after midnight on April 16,

1997, by Officer Tommy G. Goetz, a narcotics investigator. The pertinent parts of

the affidavit are summarized as follows:

       1.     The Maury County Drug Task Force had the defendant
              under investigation for several months for trafficking in
              illegal narcotics.

       2.     On February 21, 1997, a “confidential informant” gave
              agents with the Drug Task Force information concerning
              the sale of illegal narcotics in an unrelated matter. The
              agents obtained a search warrant as a result of this
              information and seized illegal narcotics.
       3.     On January 15, 1997, and February 19, 1997, this

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            same informant provided information concerning the
            defendant dealing in large amounts of cocaine from her
            residence. The confidential informant referred to the
            defendant as “Ms Jackie” who had two sons, Vern and
            Ronnie, who distributed the cocaine. “Ms Jackie” was
            “the boss.”

  4.        The confidential informant described the vehicles driven
            by Vern and Ronnie as a Tahoe and a Camero. Agents
            with the Drug Task Force verified that the defendant
            had a Tahoe and Camero registered in her name.

  5.        The confidential informant stated that the defendant
            and her sons were in possession of numerous guns that
            were “bigger” than the weapons possessed by law
            enforcement. The informant was very afraid of the
            defendant and her sons.

  6.        The confidential informant had been in the defendant’s
            residence on numerous occasions and had seen large
            amounts of cocaine and cash.1

  7.        Agents of the Drug Task Force corroborated that the
            defendant lived at the residence described by the
            confidential informant and that at least two males,
            Ronnie and Vern, lived at the same residence.

  8.        On April 15, 1997, the affiant received information from
            a “citizen” that had given historical information about the
            defendant that had previously been verified. The citizen
            stated that the defendant had come in from out-of-state
            “today” with a large quantity of cocaine.

  9.        The citizen stated that the defendant and her sons,
            Ronnie and Vern, would be distributing the cocaine
            from defendant’s residence.

 10.        The citizen had seen several weapons, large amounts
            of cocaine and cash on numerous occasions at the
            residence.

 11.        The citizen stated that Vern drove the Tahoe and
            Ronnie drove the Camero.

 12.        The citizen stated that the defendant got her supply of
            cocaine from “Shawn Cooper” in Alabama. The affiant,
            Officer Goetz, stated that Shawn Cooper was presently
            under felony indictment in Maury County for the
            possession of cocaine for resale. Agents with the Drug
            Task Force verified that the defendant made numerous
            telephone calls to Shawn Cooper in Alabama.

13.         In an earlier unrelated matter, a law enforcement officer
            attempted to summon the defendant to the door of her
            residence. They received no response but noticed two
            vehicles in the driveway. Shortly after the officer left the
            residence, the officer talked by telephone to a person at


  1
      The affidavit gives no further indication of when these occasions were.

                                          3
              the residence who identified herself as “Jacqueline
              Stepherson.”

     14.      Officer Goetz stated that he believed an immediate
              entry after knocking was necessary due to the presence
              of numerous guns in the residence. He stated that he
              believed there was a large amount of cocaine and cash
              from the sale of cocaine in the residence.

     15.      Officer Goetz further stated that he had 15 years
              experience as a police officer and 10 years as a
              narcotics investigator. He had participated in the
              execution of over 100 search warrants involving
              narcotics trafficking. His investigations led to over 100
              felony convictions in both federal and state courts on
              drug related charges.

     16.      Based upon his experience, Officer Goetz stated that
              drug dealers commonly have weapons in their
              residence in order to protect and secure their illegal
              profits. This is because drug dealers were often the
              victims of robberies during drug transactions.


       The magistrate issued the warrant at 12:25 a.m. on April 16, 1997. The

warrant contained the magistrate’s certification that “I have delivered this search

warrant for execution to: Officer Bill Doelle.” It is undisputed that Officer Doelle was

not present at that time; the search warrant was actually physically delivered by the

magistrate to Officer Goetz; and Officer Goetz subsequently gave it to Officer

Doelle. Both Officers Doelle and Goetz participated in the search and seizure at

defendant’s residence.



       The search warrant was executed at defendant’s residence approximately

two to three hours after its issuance. Several officers from the Drug Task Force and

Columbia S.W.A.T. team participated in its execution. Officers approached two

separate entrances to the residence, knocked, announced their identification and

request for entry, counted to four and simultaneously entered by knocking down the

doors with “battering rams.” “Flash bangs,” devices which make a “big flash and a

bang,” were also used. The search and seizure ensued.



       Several days after the search and seizure, the trial court signed an ex parte

order authorizing the seizure of defendant’s banking records. Defendant contends



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the seizure was not in compliance with the Financial Records Privacy Act.




        DESIGNATION OF OFFICER FOR EXECUTION OF WARRANT



       Officer Goetz was the affiant and only officer who personally appeared

before the issuing magistrate. Although the issuing magistrate physically delivered

the search warrant to Officer Goetz, the issuing magistrate endorsed “Officer Bill

Doelle” as the person to whom it was delivered for execution. Officer Goetz

subsequently gave the search warrant to Officer Doelle prior to its execution, and

both officers participated in its execution.    Defendant contends the issuing

magistrate’s improper designation of Officer Doelle as the person to whom the

warrant was delivered for execution was fatal to its validity. We must agree with

this contention.



       Tenn. R. Crim. P. 41(c) provides in pertinent part as follows:

              The search warrant shall be directed to and served by
              the sheriff or any deputy sheriff of the county wherein
              issued, any constable, or any other peace officer with
              authority in the county.... The magistrate shall endorse
              upon the search warrant the hour, date, and name of
              the officer to whom the warrant was delivered for
              execution.... Failure of the magistrate to endorse
              thereon the date and time of issuance and the name of
              the officer to whom issued... shall make any search
              conducted under said search warrant an illegal search
              and any seizure thereunder an illegal seizure.
              (emphasis added)


       The state contends the search warrant was “directed toward any Maury

County peace officer;” Officer Doelle was, in fact, an executing officer; and he

signed the return. The state argues this is sufficient compliance.



       Tenn. R. Crim. P. 41(c) provides that a search warrant may be “directed to

and served by” any peace officer with authority in the county. A separate provision



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of the rule requires an endorsement by the magistrate of the officer to whom the

warrant was “delivered for execution.” The latter provision obviously requires the

personal presence of the officer to whom it was “delivered for execution” by the

issuing magistrate. The language in the “fatal” clause concerning the failure to

“endorse ... the name of the officer to whom issued” relates to the requirement to

“endorse ... [the] name of the officer to whom the warrant was delivered for

execution.”



       The state’s reliance upon State v. Smith, 868 S.W.2d 561 (Tenn. 1993),

State v. Pigford, 572 S.W.2d 921 (Tenn. 1978), and State v. Robinson, 622 S.W.2d

62 (Tenn. Crim. App. 1981), is misplaced. These cases address those authorized

to execute a search warrant, not the failure of the magistrate to endorse the name

of the officer to whom it was delivered.



       Where the issuing magistrate fails to endorse on the warrant the hour, date,

and name of the officer to whom it is delivered for execution, the search is illegal.

Evans v. State, 354 S.W.2d 263, 264 (Tenn. 1962); Talley v. State, 345 S.W.2d

867, 869 (Tenn. 1961). These two cases were decided under the former statute

which required the issuing magistrate to endorse on the search warrant “the name

of the officer to whom the warrants were delivered for execution .... Failure to

comply with this section shall make any search ... an illegal search and seizure.”

Tenn. Code Ann. § 40-518 (repealed 1979). Virtually identical language was carried

over into Tenn. R. Crim. P. 41(c) upon its adoption. Therefore, it is clear that Tenn.

R. Crim. P. 41(c) makes fatal the failure to properly endorse the name of the officer

to whom the warrant was delivered for execution.



       The express language of the rule provides that the “failure to endorse

thereon ... the name of the officer to whom issued” renders the search and seizure

“illegal.” Tenn. R. Crim. P. 41(c). This language is plain, mandatory and must be

followed. See State v. Steele, 894 S.W.2d 318, 319 (Tenn. Crim. App. 1994).



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       This result seems harsh to this panel. Neither the United States Constitution

nor the Tennessee Constitution requires such an endorsement. This state, like

other states, has imposed requirements that go beyond constitutional requirements.

See LaFave, Search & Seizure, § 4.12 (3d ed 1996). It is not uncommon for such

provisions to be characterized as directory or ministerial so that their violation does

not render the evidence inadmissible. Id. However, the express language of Tenn.

R. Crim. P. 41(c) leaves this Court no option. Only an amendment to the rule can

effect a different result.



       In fact, the history of Tenn. R. Crim. P. 41(c) reflects this conclusion. By

order entered January 31, 1984, the Tennessee Supreme Court proposed to the

General Assembly that Tenn. R. Crim. P. 41(c) be amended by changing the last

sentence so as to make the search and seizure illegal only when due to “[a] failure

to substantially comply with the material requirements of this subsection ....” The

proposed comment stated that the proposed amendment “is intended to modify the

harsh remedy present under the [current] rule for purely technical violations of the

search warrant requirements.” By order entered May 11, 1984, the Tennessee

Supreme Court withdrew and deleted these proposals. Thus, the “harsh remedy”

remains.



       We, therefore, conclude that the warrant was fatal since it was not delivered

by the issuing magistrate to the person so stated in the warrant.



                        PROBABLE CAUSE - INFORMANTS



       Although unnecessary for the disposition of this appeal, we will address the

other issues in the event of an appeal to the Supreme Court of Tennessee.



       The trial court found that the information from the first informant indicating

drug activity on January 15 and February 19, 1997, did not alone provide a sufficient


                                          7
basis to establish probable cause for the possession of contraband on the date of




issuance of the warrant, April 16, 1997. We agree with the trial court that this

information alone was too “stale” to establish probable cause. See State v. Curtis,

964 S.W.2d 604, 616 (Tenn Crim. App. 1997).



       The trial court further concluded the second informant did not qualify as a

“citizen informant.”    Again, we agree with this ruling as there is insufficient

information in the affidavit to establish this fact. See State v. Stevens, 989 S.W.2d

290, 295 (Tenn. 1999).



       Accordingly, the trial court properly determined that the information provided

by the informants must meet the two-prong test adopted in State v. Jacumin, 778

S.W.2d 430, 436 (Tenn. 1989). The two-prong test requires both “(1) the basis for

the informant’s knowledge and either (2)(a) a basis establishing the informant’s

credibility or (2)(b) a basis establishing that the informant’s information is reliable.”

Stevens, 989 S.W.2d at 294 (citing State v. Cauley, 863 S.W.2d 411, 417 (Tenn.

1993)).



       We consider the following portions of the search warrant affidavit significant

in determining the basis of knowledge and reliability of the information. Defendant

had been under investigation by the Drug Task Force for several months. Although

the information from the first informant alone was too stale to support probable

cause, the magistrate could properly consider the first informant “reliable” since

earlier information provided by the informant led to the seizure of illegal narcotics.

Thus, the magistrate could properly conclude from information from the first

informant that the defendant previously had large amounts of cocaine in the

residence, albeit at a time significantly prior to the date of the affidavit. The identity

of the defendant and her two sons and the location of the residence were



                                            8
corroborated by the officer.     The officer also independently verified that the

defendant had talked by phone on numerous occasions to a suspected drug dealer

in Alabama who was under felony indictment in Maury County for possession of

cocaine for resale. The second informant had also seen large amounts of cocaine

at defendant’s residence on several prior occasions, although the exact dates are

unknown.



       A magistrate’s determination of probable cause is accorded “great deference”

by a reviewing court. Jacumin, 778 S.W.2d at 431-32. The standard is whether the

magistrate had a “substantial basis” for concluding that a search warrant would yield

evidence of wrongdoing. State v. Conaster, 958 S.W.2d 357, 361 (Tenn. Crim.

App. 1997)(citing Jacumin, 778 S.W.2d at 432)). When illegal activity is ongoing,

courts have generally held that the affidavit is less likely to become “stale” with the

passage of time. State v. Thomas, 818 S.W.2d 350, 357 (Tenn. Crim. App. 1991).



       The reliability of an informant as well as the information furnished must be

judged from all the circumstances and from the entirety of the affidavit. Cauley, 863

S.W.2d at 417. Furthermore, independent police corroboration can make up

deficiencies either as to the basis of knowledge or reliability. State v. Henning, 975

S.W.2d 290, 295 (Tenn. 1998); Jacumin, 778 S.W.2d at 436.



       We conclude that the affidavit, taken in its entirety, indicates ongoing illegal

activity. This is especially true considering the independent corroboration by the

authorities. Thus, the magistrate had a substantial basis for concluding that cocaine

would be present at the residence shortly after the issuance of the warrant. The

Jacumin two-prong test was satisfied.



       This issue is without merit.




                                          9
                           KNOCK AND ANNOUNCE



      Defendant contends that the officers violated the “knock and announce”

requirement by waiting only four seconds prior to the forced intrusion into the

residence. We conclude that compliance with the “knock and announce” doctrine

was not required under the facts and circumstances of this case.



      Compliance with the “knock and announce” doctrine is not required if the

officers have a reasonable suspicion that knocking and announcing would be

dangerous, futile, or allow the destruction of evidence. Henning, 975 S.W.2d at 300

(citing Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 1421, 137 L.Ed.2d 615

(1997)). In this instance the officers had information from one informant that the

defendant and her sons possessed numerous guns that were “bigger” than the

weapons possessed by law enforcement. Information from the other informant also

indicated that the informant had seen several weapons on numerous occasions at

the residence. Furthermore, the officers had reason to believe that on a prior

occasion the defendant did not come to the door when summoned by an officer.

Although we agree that the four-second wait after the knock and announce was

insufficient to satisfy a knock and announce time requirement, we conclude the

information possessed by the officers was sufficient to excuse compliance with the

knock and announce requirement.



      This issue is without merit.



                     FINANCIAL RECORDS PRIVACY ACT



      Finally, defendant contends there was a violation of the Financial Records

Privacy Act relating to the subsequent seizure of defendant’s banking records from



                                        10
the bank. See Tenn. Code Ann. § 45-10-101 et seq. We need not address this

issue. The case is before this Court upon a certified question of law after entry of

a guilty plea. As such, a certified question of law must be dispositive of the case.

See Tenn. R. Crim. P. 37(b)(2)(i). Generally, an issue is dispositive only when the

appellate court must either affirm or reverse and dismiss. State v. Wilkes, 684

S.W.2d 663, 667 (Tenn. Crim. App. 1984).



       This issue is not dispositive. If the initial search of the residence is valid, the

state can still proceed to prosecution without the bank records. If the initial search

is invalid as we have held, the state may not proceed to prosecution regardless of

whether the banking records were properly seized.



       Accordingly, this issue is not properly before this Court.



                                    CONCLUSION

       Due to the non-compliance with Tenn. R. Crim. P. 41(c), the judgment of the

trial court is REVERSED and the case DISMISSED.




                                                  ____________________________
                                                  JOE G. RILEY, JUDGE




CONCUR:



____________________________
THOMAS T. WOODALL, JUDGE



____________________________
L. T. LAFFERTY, SENIOR JUDGE



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