         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                       July 9, 2003 Session

   STATE OF TENNESSEE v. STACY L. MACK and MARTRESS SHAW

                   Direct Appeal from the Lauderdale County Circuit Court
                           No. 7237   Jon Kerry Blackwood, Judge



                   No. W2002-01828-CCA-R3-CD - Filed January 22, 2004



ROBERT W. WEDEMEYER , J., dissenting in part and concurring in part.

        While I concur in the majority’s reversal of Defendant Mack’s conviction based upon
insufficient evidence of constructive possession of cocaine, I respectfully dissent from the portion
of the majority opinion that holds that the search warrant did not sufficiently describe the premises
to be searched, because it omitted the street address, to meet constitutional standards. I disagree with
the majority’s conclusion that Bostic, 898 S.W.2d 242, does not apply under the facts of this case
because “[w]e are not confronted herein with an ambiguous description, i.e., one that is susceptible
to multiple interpretations, but rather the omission of important details in the description.” I believe
that the omission of the street address created an ambiguity in the search warrant, which was cured
by Detective Tutor’s knowledge of the location to be searched. To hold otherwise effectively ignores
the precedent established in Bostic.

        In Bostic, we stated:

       Identifying the place to be searched as the defendant’s residence or place of
       occupation provides the warrant some degree of specificity in that the executing
       officer is informed that the defendant is the target of the search and that he either
       resides at or occupies the property to be searched. Also it is significant that . . . the
       searching officer, was the affiant for the warrant and personally knew where the
       defendant lived because he had been to the house before. In this respect, the
       description of the place contained in the warrant would, by its terms, lead the
       searching officer to the correct location. . . . That is, when the warrant is facially
       accurate about the description and location of the place to be searched, but a claim
       is made that an ambiguity [exists] . . . the legal effect of such a possible ambiguity
       may be determined by considering the fact that the executing officer was the affiant
       and personally knew where the place to be searched was located.
Id. The search warrant in Bostic contained ambiguous driving directions to the defendant’s
residence.1 Id. at 244. The Bostic court found that “[t]he possibility of any ambiguity in the location
of the defendant’s residence which might have arisen in the execution of the warrant was negated
by [the police officer’s] actual knowledge that the property was located, in fact, as described in the
warrant.” Id. at 246; see LaFave, supra, § 4.5(a), at 516-17 (stating that “[u]nder some
circumstances, an insufficiency in the warrant description may be cured by facts known by the
executing officer other than by examination of the affidavit,” especially where the affiant was also
the executing officer).

        The warrant in this case directed Detective Tutor to search “the premises occupied by Stacy
Mack said premises being a wood framed single story dwelling with green siding and black
shingle roof in Ripley, situated in Lauderdale County, Tennessee.” In contrast to the ambiguity
contained in the Bostic search warrant, the search warrant in this case omitted the street address of
the residence, creating an ambiguity in its description of Defendant Mack’s residence. While
Tennessee courts have not addressed whether the Bostic analysis applies to an ambiguity in a search
warrant created by the omission of a street address, the First Circuit of the United States Court of
Appeals has addressed whether such an omission invalidated a search warrant where the federal
agents executing the search warrant were familiar with the location to be searched in United States
v. Bonner, 808 F.2d 864, 865 (1st Cir. 1986). In Bonner, the search warrant described the premises
to be searched in detail, but omitted the street address of the residence.2 The First Circuit stated,
“The test for determining the adequacy of the description of the location to be searched is whether
the description is sufficient ‘to enable the executing officer to locate and identify the premises with

         1
             The search warrant in Bo stic stated as follows:

         [T]he offense of unlawfully possessing marijuana is . . . being . . . committed by the defendant Jack ie
         Bo stic (on the premises) hereinafter described . . . [Y]ou are hereby commanded . . . to . . . search .
         . . the (premises) . . . located in Bradley County, Tennessee and described as follows: From the
         intersection of Buckhanon [sic] Rd. and Do ckery Travel So uth on Buckhanon [sic] Rd . 5 tenths o f a
         mile to Marion Circle. Turn right on Marion Circle including the house on the corner of Buckhanon
         [sic] and M arion the resid ence will be the second on the left. . . .

Bo stic, 898 S.W.2d at 244. The Bo stic court explained that the controversy surrounding the sufficiency of the
description arose from the fact that “M arion Circle intersects with Buchanan R oad in two places, neither of which is
exactly five tenths o f a mile from the inte rsection of B uchanan an d D ockery. The d efendant’s hom e is the second house
on the left from the second intersection of Marion Circle and Buchanan, not the first.” Id.

         2
             The search warrant in Bonner described the premises to b e searched as follows:

         The properties to be searched are a blue, wood-frame ranch style house with white trim and blue
         printed shingles with a screened porch on the back and two solar panels on the roof; a white trailer
         behind the house ; and a barn-like structure in dilapidated condition of unpainted aged wood. There
         is a mailbox b earing the name Bo nner in front of the residence. Adjacent to the residence is a
         detached two car garage with two sep arate b ays and two sep arate white garage doors. Both the trailer
         and barn have a white electrical cable running from them to the house.

Bonner, 808 F.2d at 865, n.1.

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reasonable effort, and whether there is any reasonable probability that another premise[s] might be
mistakenly searched.’” Bonner, 808 F.2d at 866 (quoting United States v. Turner, 770 F.2d 1508,
1510 (9th Cir. 1985)); see United States v. Vega-Figuieroa, 234 F.3d 744, 756 (1st Cir. 2000);
United States v. Pervaz, 118 F.3d 1, 9 (1st Cir. 1997). Applying this test, the First Circuit held that:

         The warrant here, considering the circumstances of its issuance and execution,
         suffered from a minor, technical omission. There was no risk that federal agents
         would be confused and stumble into the wrong house, or would take advantage of
         their unforeseeable windfall and search houses indiscriminately. The agents, having
         previously conducted the surveillance, knew exactly which house they wanted to
         search, described it accurately and in detail in their affidavit, and searched only that
         house without delay after the warrant issued. We hold that the Bonner residence was
         described with sufficient particularity, and although the address was inadvertently
         omitted, there was no reasonable probability that another premises might be
         mistakenly searched; thus, the search warrant was valid.

Bonner, 808 F.2d at 866-67. I believe that the First Circuit’s particularity test is entirely consistent
with the particularity analysis for search warrants adopted by this Court in Bostic and is persuasive.
Accordingly, I conclude that the Bostic analysis applies to an ambiguity created by the omission of
the street address in a search warrant.

         Therefore, I would hold that the omission of the street address provided by the officer
presenting the affidavit created an ambiguity that was not fatal to the search warrant’s
constitutionality. Defendant Mack was named in the search warrant. The officer who drafted the
affidavit, Detective Tutor, was the same officer who executed the search of the premises. Detective
Tutor testified that he was familiar with the premises and that he, in fact, provided the street address
in his affidavit. Furthermore, the search warrant described the physical characteristics of Defendant
Mack’s residence and stated that the residence was located “in Ripley, situated in Lauderdale
County, Tennessee.” As in Bonner, Detective Tutor and the other officers, through their
investigation and surveillance, knew exactly which location they wanted to search and searched only
that location. Defendant Mack’s residence was described with sufficient particularity, and although
the street address was omitted from the warrant, there was no reasonable probability that another
premises might be mistakenly searched. Moreover, the possibility of any ambiguity in the location
of Defendant Mack’s residence that might have arisen during the execution of the warrant was
negated by Detective Tutor’s actual knowledge of the location of the property described in the search
warrant.3




         3
           W hile I would so hold, I note that the better practice is for magistrates to o nly issue search warrants that
describe the place to be searched in as much detail as possible, including the street add ress. B y including the accura te
street address of the property to be searched, magistrates will minimize the risk that officers executing the search warrant
will search the wrong p lace b y mistake or that the ir search warrants will be deem ed invalid for lack of particularity.



                                                            -3-
         Based upon my finding that the warrant sufficiently described Defendant Mack’s residence
under the circumstances of this case, I would affirm Defendant Shaw’s conviction because sufficient
evidence exists to support it. When viewed in a light most favorable to the State, the evidence
reveals that Detective Tutor and the other law enforcement officers involved in the search found
residue which field-tested positive for cocaine, as well as 1.9 grams of cocaine in Connelly’s mouth
and cash on Defendant Shaw roughly equivalent to the street value of the cocaine found in
Connelly’s mouth. Because the State is entitled to the strongest legitimate view of the evidence in
the record, as well as all reasonable and legitimate inferences that may be drawn therefrom, a rational
trier of fact could have found that Defendant Shaw had sold the cocaine to Connelly prior to being
searched. A rational trier of fact could have found that Defendant Shaw possessed more than 0.5
grams of cocaine with the intent to deliver. Accordingly, I would affirm Defendant Shaw’s
conviction.



                                                       ________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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