         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                   STATE OF TENNESSEE v. CALVIN CATHEY

                              No. 3887   Clayburn Peeples, Judge



                  No. W2009-01624-CCA-R3-CD - Filed September 1, 2011


JERRY L. SMITH , J., dissenting.

        I must dissent from the holding of the majority that the search warrant, despite its
failure to name the city in which it is to be executed, nevertheless identifies Appellant’s
residence with sufficient specificity. As noted by the majority, the federal and state
constitutions as well as statutory law require that a search must particularly describe the place
to be searched. U.S. Const. amend. IV; Tenn. Const. art. I, § 7; T.C.A. § 40-6-103. The
majority also correctly points out that this “specificity” requirement is met if the description
of the place to be searched “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 259, 259 (Tenn. 1961); State v. Cannon, 634
S.W.2d 648, 650 (Tenn. Crim. App. 1982)).

       In the instant case the affidavit in support of the search warrant does not name the city
in Crockett County in which it is to be executed. Additionally, it does not specify a zip code
which might point to the property being outside a city or town. At the suppression hearing
the prosecutor conceded that “there were problems with the warrant.” However, the
prosecutor stated that “if you know anything about Crockett County you know where this is.”
The trial court agreed and denied the motion to suppress. Neither witness testimony nor any
other evidence was presented in support of the warrant. Based on this scant record the
majority concludes that the warrant is sufficient.

        The problem I have with this approach is that no testimony or other evidence was
presented to show that the officer who was to execute the warrant was familiar with the place
to be searched. In the case on which the majority relies to support it holding, State v. Bostic,
898 S.W.2d 242 (Tenn. Crim. App. 1994), the “specificity” problem with the warrant was
cured by the testimony at the suppression hearing of the affiant, who was also the executing
officer, that he was personally familiar with the location of the premises to be searched. Id.
at 246. No such testimony was presented here. The State cites this Court to the case of
Hatchett v. State, 346 S.W.2d 258 (Tenn. 1961), which holds that is some instances the
specificity requirement may be satisfied by naming the occupant of the premises to be
searched. Id. at 259. Hatchett in turn is based on the earlier case of Webb v. State, 121
S.W.2d 550 (Tenn. 1938), which holds that the specificity requirement may be relaxed in
rural areas and may be satisfied by reference to the name of the occupant of the premises to
be searched since such premises are often referred to in rural areas by the name of the
occupant. Id. at 552. The problem in the case herein is that there is no testimony that
Appellant’s residence was in a rural area. As noted in Bostic the failure of the prosecution
to present evidence that the premises to be searched are in a rural area or that the premises
are commonly referred to by the name of the occupant is insufficient for the specificity
requirement for search warrants. 898 S.W.2d at 246. The majority appears to take judicial
notice that all of Crockett County is rural in nature and thus the specificity requirement is
relaxed. I have no personal knowledge of the rural vs. urban nature of Crockett County, nor
of the point at which an area’s development moves from rural to urban. I do note that the
2010 United States Census shows that Crockett County, Tennessee has a population of
14,586 persons. See http://quickfacts.census.gov/qfd/ (choose Tennessee, choose Crockett
County). According to additional census figures, the county has three cities and three towns,
five of which are incorporated. See http://naco.org (follow “about counties,” then follow
“find a county,” select Tennessee, select Crockett, select “places in Crockett County”).

       Because of the lack of evidence in this case of the executing officer’s personal
knowledge of the location of the premises to be searched, the lack of evidence indicating that
the premises are in a rural setting, and the fact that there are five incorporated cities or towns
in Crockett County, I find that failure to specify either the city of town renders the search
warrant invalid. I therefore dissent.



                                                     ___________________________________
                                                     JERRY L. SMITH, JUDGE




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