        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE

                             June 1997 Session       FILED
                                                       October 2, 1997
STATE OF TENNESSEE,                  )               Cecil Crowson, Jr.
                                     )               Appellate C ourt Clerk
           Appellee,                 )     No. 03C01-9701-CC-00018
                                     )
vs.                                  )     Bradley County
                                     )
BUDDY HUGH BREWER and                )     Hon. Mayo L. Mashburn, Judge
TAMMY BREWER,                        )
                                     )     (Certified Question--Search and
           Appellants.               )      Seizure)



FOR THE APPELLANTS:                        FOR THE APPELLEE:

KENNETH L. MILLER                          JOHN KNOX WALKUP
Attorney for Appellants                    Attorney General and Reporter
30 Second Street
P.O. Box 191                               SANDY R. COPOUS
Cleveland, Tennessee 37364                 Assistant Attorney General
                                           450 James Robertson Parkway
                                           Nashville, TN 37243-0493

                                           JERRY N. ESTES
                                           District Attorney General

                                           CARL PETTY
                                           Asst. District Attorney General
                                           P.O. Box 1351
                                           Cleveland, TN 37364-1351



OPINION FILED: ___________



REVERSED, VACATED and REMANDED


CURWOOD WITT
JUDGE
                                     OPINION



              The defendants, Buddy Hugh Brewer1 and his wife, Tammy Brewer,

appeal certified questions of law from the Bradley County Criminal Court pursuant

to Rule 37(b) (2) (I) of the Tennessee Rules of Criminal Procedure.2 In cases which

have been consolidated for hearing on appeal, the defendants challenge the

issuance and execution of a warrant to search their home, and Tammy Brewer also

challenges the legality of an arrest and a search of her person incidental to that

arrest. Subject to the reservation of these dispositive certified questions, Buddy

Brewer pleaded guilty to and received convictions for the following offenses: (1)

simple possession of Schedule II controlled substances, $750.00 fine, eleven

months, twenty-nine days in the county jail, to be served on probation; (2)

possession of marijuana for sale, Class E felony, Range I, $2,000.00 fine, one year

sentence to be served in split confinement of 90 days incarceration and the

remainder of the sentence to be served on probation.         Subject to the same

reservation, Tammy Brewer pleaded guilty to simple possession of marijuana and

received a fine of $250.00 and a sentence of eleven months, twenty-nine days, to

be served on probation.



              As identified in the trial court’s “Order Certifying Reserved Question

on Appeal,” the dispositive questions of law brought to this court are summarized

as follows:

              (1) Whether probable cause existed for the issuance of the search

              warrant for the defendants’ home;

              (2) Whether the search warrant was overly broad and illegal;



              1
             Although some documents in the record refer to this defendant as
“Buddy Brewer” it is the policy of this court to use the name as it appears on the
indictment. On the indictment, this defendant is identified as “Buddy Hugh
Brewer.”
              2
             The appellants’ procedure in certifying the question of law satisfies
the requirements established by our supreme court in State v. Preston, 759
S.W.2d 647, 650 (Tenn. 1988), and the state has not asserted any
noncompliance.

                                            2
              (3) Whether the search warrant was illegally executed; and

              (4) Whether the search of the person of Tammy Brewer was unlawful.

After a thorough review of this case, we hold that, even though the defendants have

failed to show that the search warrant was improperly issued, the search must be

invalidated because of the faulty execution of the warrant. Because the basis of the

arrest of Tammy Brewer and the resulting search of her person was the discovery

of contraband made by the officers executing the warrant, the search of Tammy

Brewer is likewise invalid. As a result, the order of the trial court overruling the

motion to suppress is reversed, and the judgments of conviction based upon the

guilty pleas are vacated and set aside.



              On October 9, 1995, an affiant identified as “Det. Roxanne Blackwell”

executed an affidavit for a search warrant before a Bradley County General

Sessions Court Judge. In the affidavit, she alleged that Buddy Brewer possessed

controlled substances described as methamphetamine, which controlled substances

were located in “_________ County, Tennessee” at a house to which travel

directions were provided. The affidavit further states that a confidential informant

went to the described location and “saw the drugs stored at that location,” that this

informant “has given officers of this department information in the past that has led

to arrest and convictions,” and that the informant saw “the drugs at this location

within the last three (3) days.” On the same date, the General Sessions Court

Judge, the magistrate to whom the affiant applied for a search warrant, issued a

warrant commanding the officers to proceed to the described location “in Bradley

County, Tennessee” to search for “an off-white powder believed to be

methamphetamine/cocaine.”



              Testimony at the suppression hearing revealed that “Det. Roxanne

Blackwell” was an officer with the Bradley County Sheriff’s Department. She testified

that she procured the warrant and that she and a second officer carried out the

search of the defendants’ home where some contraband was found.                  The



                                          3
defendants were not at home when the search was carried out, but they arrived

before the officers departed. Det. Blackwell testified that when the defendants

drove up to the house, she arrested Tammy Brewer for the possession of the

contraband found in the house and discovered marijuana on her person in a search

incidental to the arrest. Det. Blackwell further testified that, upon issuance of the

search warrant to her, she kept all three copies, “[t]he judge’s, ours, and the

defendants’.” She testified that the usual procedure was for the executing officer

to take all three copies of the warrants and, after execution, to take them to the

office in order to add the listing of evidence seized. She testified this was done in

this case, that no copy of the warrant was given to either of the Brewers prior to the

post-search paperwork, and that she did not know when or from whom the Brewers

received a copy of the warrant. Tammy Brewer testified that she received the copy

when her personal effects were returned to her upon her release from jail, and that,

prior to her showing this copy to Buddy Brewer, he had not been presented with a

copy of the warrant.



              The trial court overruled the defendants’ motions to suppress the

evidence seized from the defendants’ house and from the person of Tammy

Brewer.



              On appellate review, a trial court’s denial of a motion to suppress will

be upheld unless the evidence preponderates against the lower court’s findings.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).



              A search warrant is “an order in writing in the name of the state,

signed by a magistrate, directed to the sheriff, any constable, or any peace officer

of the county, commanding him to search for personal property, and bring it before

the magistrate.” Tenn. Code Ann. § 40-6-101 (1990).



              Rule 41(c) of the Tennessee Rules of Criminal Procedure provides in



                                          4
pertinent part:

       The magistrate shall prepare an original and two exact copies of the
       search warrant, one of which shall be kept by the magistrate as a part
       of his or her official records, and one of which shall be left with the
       person or persons on whom the search warrant is served. The
       magistrate shall endorse upon the search warrant the hour, date, and
       name of the officer to whom the warrant was delivered for execution;
       and the exact copy of the search warrant and the endorsement
       thereon shall be admissible evidence. Failure of the magistrate to
       make said original and two copies of the search warrant or failure to
       endorse thereon the date and time of issuance and the name of the
       officer to whom issued, or the failure of the serving officer where
       possible to leave a copy with the person or persons on whom the
       search warrant is being served, shall make any search conducted
       under said warrant an illegal search and any seizure thereunder an
       illegal seizure.

Tenn. R. Crim. P. 41(c).



              On a constitutional level, the Fourth Amendment to the United States

Constitution forbids unreasonable searches and seizures and the issuance of

warrants except upon probable cause, “supported by oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.”   U.S. Const. amend. IV.       The Tennessee Constitution also forbids

unreasonable searches and seizures, and departing from the language of the

federal provision, it proscribes “general warrants, whereby an officer may be

commanded to search suspected places, without evidence of the fact committed,

or to seize any person or persons not named, whose offences are not particularly

described and supported by evidence ....” Tenn. Const. art. I, § 7. Of course, the

federal provision is applicable to state action. Mapp v. Ohio, 364 U.S. 643, 81 S.Ct.

1684, 6 L.Ed.2d 1081 (1961).




    I. Probable Cause and the Issuance and Content of the Search Warrant.



              The defendants have attacked the sufficiency of the affidavit

supporting the search warrant on the grounds that it does not affirm the veracity of



                                         5
the confidential informant as required by State v. Jacumin, 778 S.W.2d 430 (Tenn.

1989). Furthermore, they allege the affidavit failed to establish probable cause

when some portions of the affidavit referred simply to “drugs,” as opposed to illicit

drugs, and when the affiant failed to identify the county in Tennessee in which the

suspected property is located. They also allege the language of the warrant is

overly broad in describing the physical area to be searched and the items to be

seized. Specifically, they contend there was no basis for the warrant authorizing the

search of “all outbuildings and vehicles,” nor was the magistrate authorized to

command a search for “an off-white powder believed to be cocaine.” These issues

require a reference to and an examination of the affidavit and search warrant.



               A facsimile of an affidavit and a search warrant appears in the

technical record that was prepared and certified by the trial court clerk. Also, a

facsimile of these items was appended to the defendant’s brief, and the brief

identified the facsimile as a copy of the affidavit and warrant now under attack.

While appending a copy of the affidavit and warrant to the brief is helpful to this

court if they were otherwise properly set forth in the record, we find that the affidavit

and search warrant at issue were not properly before the court. They were not

offered into evidence at the suppression hearing, and no copies of the affidavit and

warrant that appear in the technical record have been certified or authenticated by

the trial judge.



               The same situation was presented to this court in State v. Cooper, 736

S.W.2d 125 (Tenn. Crim. App. 1987). In Cooper, the search warrant that had been

attacked in a motion to suppress appeared in the technical record but not as an

exhibit in the transcript of the evidence. We held in Cooper that we were precluded

from considering the issue and made the following observation:

       Before an exhibit may be considered by the court, it must have been
       (a) received into evidence, (b) marked by the trial judge, clerk or court
       reporter as having been received into evidence as an exhibit, (c)
       authenticated by the trial judge, and (d) included in the transcript of
       the evidence transmitted to this court.



                                           6
Cooper, 736 S.W.2d at 131. In the case now before us, the trial court has not

authenticated any copy of an affidavit and warrant as a copy of the affidavit and

warrant under attack. The “technical record” is certified by the trial court clerk, but

it is not authenticated by the trial judge. Compare Tenn. R. App. P. 24(a)(1)

(certification by trial court clerk of all papers filed in trial court, with exceptions) with

Tenn. R. App. P. 24(f) (approval of transcripts and exhibits by trial judge). In this

situation, the affidavit and warrant are not in evidence, and “[w]e must conclusively

presume the ruling of the trial court was correct,” at least as to those issues which

cannot be resolved without reviewing the affidavit and warrant. Cooper, 736 S.W.2d

at 131. See Chico v. State, 217 Tenn. 19, 25-26, 394 S.W .2d 648, 651 (1965); Fine

v. State, 183 Tenn. 117, 119, 191 S.W .2d 173, 174 (1945).



                           II. The Execution of the Warrant.



               Because the dispositive issue concerning the execution of the warrant

does not require a review of the contents of the affidavit or the warrant, we examine

the issue of execution even though there is no copy of the warrant in evidence. The

fact that the warrant exists is in evidence via testimony adduced at the suppression

hearing.



               We hold that the failure of the magistrate to retain a copy of the search

warrant deprives the warrant of any efficacy. As pointed out above, Rule 41

requires the magistrate to “prepare an original and two exact copies of the search

warrant, one of which shall be kept by the magistrate as a part of his or her official

records....” Tenn. R. Crim. P. 41(c). It is undisputed that the executing officer took

the original and both copies with her after the warrant was issued.3




               3
              It is not clear if the officer also took the affidavit with her without
leaving a copy with the magistrate. Under Tennessee law, the affidavit is a
document separate from the warrant. State v. Oliver Lowe, No. 01C01-9601-
CC-00010 (Tenn. Crim. App., Nashville, Sept. 19, 1996), perm. app. denied
(Tenn. 1997).


                                             7
              This court previously has reviewed anomalies concerning the issuing

magistrate’s retention of a copy of the search warrant. See State v. Gambrel, 783

S.W.2d 191 (Tenn. Crim. App. 1989); State v. Henry, 680 S.W.2d 476 (Tenn. Crim.

App. 1984). In Gambrel, the magistrate retained a physical copy of the warrant, but

due to the weakness of the carbon impression, the wording that was written into the

blanks in the form’s printed language on the magistrate’s copy was “barely legible.”

This court observed in Gambrel that the “purpose of having the magistrate retain a

copy ... is to insure the purity of the search process.” 783 S.W.2d at 192. We

pointed out that the rule protects against any post-issuance alteration of the original

warrant and “gives the judge control to insure that the warrant is executed and

returned to the magistrate in a timely manner ....” Id. However, we noted in

Gambrel that the written portion of the warrant was merely dim, not absent, and we

held that the copy left with the magistrate was an “exact copy” that complied with

Rule 41(c). Id.



              In Henry, the search warrant copy that had been retained by the

magistrate was misplaced and could not be produced at the suppression hearing.

This court affirmed the trial court’s determination the search was valid despite the

absence of the magistrate’s copy. We pointed out that the magistrate initially

retained a copy of the warrant. “Only sometime later did the magistrate’s copy

become lost.” 680 S.W.2d at 478. In Henry, the record disclosed no “changes or

deletions” or “improprieties” with the warrant, and moreover, the defendant failed to

show that he was prejudiced in any manner by the loss of the once-existing copy.

Id.



              The case before us, however, is distinguishable from Gambrel and

Henry in two important respects. The first distinction in the defendants’ cases

concerns a separate anomaly in the warrant’s execution. Rule 41(c), in addition to

requiring that the magistrate retain a copy, requires also that the other copy “shall

be left with the person or persons on whom the search warrant is served.”



                                          8
Furthermore, the rule provides as follows:

       [F]ailure of the serving officer where possible to leave a copy with the
       person or persons on whom the search warrant is being served, shall
       make any search conducted under said search warrant an illegal
       search and any seizure thereunder an illegal seizure.

Tenn. R. Crim. P. 41(c). The officers delivered no copies to either of the defendants

when they arrived at their residence after the completion of the search. The

testimony reflects that the officer prepared the inventory of the seized items before

attempting to deliver a copy of the warrant to the defendants. Tammy Brewer

received a copy on the following day upon her release from custody, and she

testified that Buddy Brewer received no copy of the warrant. We need not

determine, and we decline to determine, whether the delay of a post-search service

of the copy on the defendants, who were absent prior to and during the search, was

by itself a departure from the requirement of Rule 41(c) that a copy be left with the

defendants. However, the overnight delay in providing a copy of the warrant to the

defendants exacerbates the error made when no copy was retained by the

magistrate. From the time the warrant was issued until after the search was

completed, law enforcement officers retained absolute control over the original and

all existing copies of the warrant. In this context, there is the opportunity to repair

errors or deficiencies which may have only become apparent during or after the

search.   In this situation, “the purity of the search process” is substantially

compromised.



              The second distinction between this case and the Gambrel and Henry

situations is perhaps more important. In both Gambrel and Henry the issuing

magistrates initially retained copies of the warrants in compliance with Rule 41(c).

On the other hand, the magistrate never retained a copy after issuance, and the

executing officer went into the field in possession and control of the original and all

existing copies of the warrant. This practice, standing alone, impermissibly militates

against the purity of the search process.



              We make this observation about the method of execution used in this


                                          9
case because of the damage to the integrity of the search warrant process caused

by the possibility, if not the appearance, of official misconduct. We stress that no

one has accused the executing officer of tampering with the warrant, and we do not

imply that any such conduct occurred in this case. Moreover, Rule 41(c) places the

duty upon the magistrate to prepare and keep an exact copy of the warrant “as a

part of his or her official records,” and it is not the officer’s duty to see that this

magisterial act is performed.       Nevertheless, when this basic, common sense

requirement of the rule is not followed, there is damage to the process, ipso facto

and ab initio.



                 It remains for us to determine the result of this departure from Rule

41(c). The defendants request that the fruits of the searches be suppressed, but

in Henry this court noted that, with respect to the magistrate not retaining a copy of

the issued warrant, Rule 41(c) contains “no internal exclusionary clause requiring

the search to be invalidated where the magistrate fails to maintain his retained copy

in his possession throughout the case.” Henry, 680 S.W.2d at 478. This dictum

refers to the final sentence of Rule 41(c) which sets forth the “mandatory” language

that makes a search and/or seizure “illegal” when the magistrate fails “to make [an]

original and two copies of the search warrant,” fails to endorse thereon the “date

and time of issuance and the name of the officer to whom issued,” or when the

officer fails “where possible to leave a copy with the person or persons on whom the

search warrant is being served ....” See Tenn. R. Crim. App. 41(c). Failure of the

magistrate to retain a copy is not one of the situations in which the rule dictates

invalidation of the search.



                 On the other hand, one of the express mandatory directives of the rule

is that the magistrate make an original and two copies of the warrant. The rule is

clear that the purpose of one of these copies is that it remain in the possession of

the magistrate “as a part of his or her official records.” Thus, the object of the

making of a magistrate’s copy is that the magistrate have and keep the copy after



                                           10
issuance of the warrant.     For this reason, we conclude that the magistrate’s

retention of a copy of the search warrant is implicit in the mandatory provisions of

Rule 41(c), the provisions under which a failure to comply “shall make any search

conducted ... an illegal search and any seizure thereunder an illegal seizure.”4

Tenn. R. Crim. P. 41(c). The appellate courts of this state have previously held that

a violation of these provisions leads to suppression of the illegally seized evidence.

Johnson v. State, 208 Tenn. 620, 348 S.W.2d 295 (Tenn. 1961); Talley v. State,

208 Tenn. 275, 345 S.W.2d 867 (Tenn. 1961); State v. Steele, 894 S.W.2d 318

(Tenn. Crim. App. 1994); State v. Grapel Simpson, et al, No. 02C01-9508-CC-

00240 (Tenn. Crim. App., Jackson, Sept. 30, 1996); State v. Jerry Neal Lindsey, No.

3 (Tenn. Crim. App., Jackson, Nov. 20, 1985).




       4
               In arriving at this conclusion, we are mindful of the predecessor
provision of Rule 41(c). This provision was set forth in Tennessee Code
Annotated section 40-518 (Supp. 1974) (repealed 1979). The final sentence in
the statute was different from the final sentence appearing in Rule 41(c). In the
statute, the sentence read: “Failure to comply with this section shall make any
search conducted under said warrant an illegal search and seizure” (emphasis
added). This section included the requirement that the magistrate keep a copy
of the warrant “as a part of his official records.” Tenn. Code Ann. § 40-518
(Supp. 1974) (repealed 1979). (The rules of Criminal Procedure were approved
by the General Assembly pursuant to Tennessee Code Annotated section 16-3-
404. They became effective on July 13, 1978, after being approved by the
Governor on April 14, 1978.)

               We are also mindful that the deletion of the requirement that the
magistrate retain a copy of the warrant from the mandatory language when the
legislature adopted the Rules in 1978 and then repealed Code Section 40-518 in
1979 could be construed as a deliberate act of redaction. One applicable rule of
statutory construction is that “the mention of one subject in a statute means the
exclusion of other subjects that are not mentioned.” State v. Harkins, 811 S.W.
2d 1, 3 (Tenn. 1986). Furthermore, courts could construe statutes “so that no
part will be inoperative, superfluous, void, or insignificant ... and further to give
effect to every word, phrase, clause and sentence of the act in order to carry out
the legislative intent.” Tidwell v. Collins, 522 S.W.2d 674, 767-77 (Tenn. 1975).
We do not presume that the legislature “intended to place superfluous terms in
the statute; and all language in a statute is presumed to have some meaning.”
State v. Vestal, 611 S.W.2d 819, 821 (Tenn. 1981). Also, a statute should be
construed “so that its component parts are consistent and reasonable.” Marsh v.
Henderson, 221 Tenn. 42, 48, 424 S.W .2d 193, 196 (Tenn. 1968).

              Applying these aids to the construction of Rule 41(c), the
mandatory language must include implicitly the requirement of leaving a warrant
copy with the magistrate. Otherwise, the requirement of making the magistrate’s
copy is superfluous. We construe the terms of Rule 41(c) together, and in order
to give reasonable effect and meaning to every word, we must conclude that the
requirement of making a copy for the magistrate entails leaving that copy with
the magistrate.

                                         11
             Consequently, we hold that the search of the Brewer residence was

invalid, and the fruits of that search should have been suppressed. Because the

probable cause that was used to justify the arrest of Tammy Brewer is based upon

the discoveries made pursuant to the search warrant, the arrest is unjustified, and

therefore, the warrantless search of her person incidental to that arrest is itself

invalid. The fruits of that search also should have been suppressed. It is unclear

from the record whether Buddy Brewer’s marijuana conviction is based upon

contraband that was discovered in the residence or whether it is based upon a

search of his person, but it is apparent in the record that his arrest and any

subsequent search of his person resulted from the discoveries made in the

residence. Therefore, the same rationale as applies to Tammy Brewer proscribes

the use of evidence obtained through any search of Buddy Brewer’s person.



             Therefore, the action of the trial court in overruling the defendants’

motion to suppress is reversed, and the pleas of guilt are vacated and set aside.

The cases are remanded, and in view of our treatment of the dispositive issues, the

cases shall be dismissed.




                                         __________________________
                                         CURWOOD WITT, JUDGE



CONCUR:



________________________
JOHN H. PEAY, JUDGE


________________________
JOSEPH M. TIPTON, JUDGE




                                        12
