State v. Dennis Keith and Timothy Collins ( 1998 )

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FILED
September 28, 1998
STATE OF TENNESSEE, ) For Publication
) Cecil Crowson, Jr.
Appellee, ) Filed: Appellate C ourt Clerk
)
v. ) Madison County
)
DENNIS KEITH and ) Hon. Whit LaFon,
TIMOTHY COLLINS ) Judge
)
Appellants. ) No. 02-S-01-9604-CC-00035
DISSENTING OPINION
I respectfully dissent from the majority’s judgment that
the search warrant was properly supported by affidavit. In my
view, an “affidavit” which does not show on its face that it was
sworn to is no affidavit at all. Rather, it is merely an unsworn
writing.
The State attempts to correct this deficiency by
submitting proof that the supporting affidavit had been sworn. But
the fact remains that at the time of the search, the search warrant
was not “supported by affidavit” as required by Tenn. Code Ann.
§ 40-6-103 (1997), nor “supported by oath or affirmation” as
required by the Fourth Amendment to the United States Constitution.
If the occupant of the subject property had inspected the warrant
as it was being executed, he could have rightfully refused to allow
the search. The constitutional right to so refuse an unreasonable
search should not be later extinguished simply because the State
corrected its mistake after the fact.
The rule the majority promulgates today is closely akin
to the “good faith” exception to the exclusionary rule: as long as
law enforcement officers act honestly and reasonably, then the
fruits of their search will be admitted into evidence even though
the search warrant was not supported by probable cause. United
States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677
(1984). We have not yet addressed the good faith exception in
Tennessee, and I am wary of even the slightest, albeit oblique,
movement in that direction.
Therefore, I would follow Commonwealth v. Dozier, 366
N.E.2d 1270 (Mass. App. Ct. 1977). In that case, a statute
required that the affidavit supporting the search warrant be sworn
before a justice, special justice, clerk, or assistant clerk.
Because the jurat was unsigned, the seized evidence was held
properly suppressed. Id. at 1270.
In conclusion, this Court once stated:
The use of printed forms has
made the procurement of a search
warrant the merest formality,
considering the fundamental
constitutional right which the
search invades. Certainly, this
Court can do no less than to require
that the few blank spaces be filled
in, and the other details of the
formality be carried out with care
and precision.
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Everett v. State, 182 Tenn. 22, 28, 184 S.W.2d 43, 45 (1944)
(finding an affidavit deficient because the month was omitted from
the date of the alleged offense). Because I adhere to this
principle, I must respectfully dissent from the majority’s
decision. I would find it necessary to suppress the evidence
seized pursuant to this defective search warrant.
_______________________________
ADOLPHO A. BIRCH, JR., Justice
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