State of Tennessee v. Calvin Cathy ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 1, 2011
STATE OF TENNESSEE v. CALVIN CATHEY
Direct Appeal from the Circuit Court for Crockett County
No. 3887 Clayburn Peeples, Judge
No. W2009-01624-CCA-R3-CD - Filed September 1, 2011
The appellant, Calvin Cathey, pled guilty in the Crockett County Circuit Court to possession
of .5 grams or more of a Schedule II controlled substance with intent to sell or deliver and
received an eight-year sentence to be served as one hundred eighty days in jail and the
remainder on probation. As a condition of his plea, the appellant reserved a certified
question of law, namely whether the search warrant obtained to search his home sufficiently
described the property to be searched. Based upon the record and the parties’ briefs, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which A LAN E. G LENN, J.,
joined. J ERRY L. S MITH, J., filed a dissenting opinion.
J. Diane Blount (on appeal) and Rachael Scott (at trial), Trenton, Tennessee, for the
appellant, Calvin Cathey.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel W. Willis, Assistant Attorney
General; Garry G. Brown; District Attorney General; and Edward L. Hardister and Matthew
Hooper, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The record reflects that in February 2007, the Crockett County Grand Jury indicted
the appellant for possession of .5 grams or more of a Schedule II controlled substance with
intent to sell or deliver, a Class B felony. The appellant filed a motion to suppress the
cocaine found in his residence, arguing that the warrant obtained to search his apartment
failed to describe with particularity the property to be searched because the warrant did not
name the city in which the apartment was located. The appellant also argued in the motion
that the affidavit used to obtain the warrant failed to list the address of the informant’s
alleged drug buy, which served as the probable cause to issue the warrant. The State filed
a memorandum in support of the warrant, acknowledging that the warrant failed to provide
the city or zip code for the place to be searched. However, the State argued that the warrant’s
including the appellant’s address and a detailed description of how to get to the residence
cured any ambiguity. During a brief hearing on the motion, in which no witnesses testified,
the State again acknowledged that “there were problems with the warrant.” However, the
State contended that “if you know anything about Crockett County you know where this is.”
The trial court agreed, stating, “I know what you’re saying. I think it’s not fatal, so I’m
denying your Motion.”
II. Analysis
The appellant argues that the search warrant was invalid because it failed to name the
city in which his apartment was located. In addition, he argues that the affidavit used to
obtain the warrant failed to list the address of the informant’s alleged drug buy, which served
as the probable cause to obtain the warrant. The State argues that the warrant was valid. We
agree with the State.
The search warrant was issued upon affidavit by Chief Ilandis W. Smith. The
affidavit and the warrant contained the following description of the premises to be searched:
STARTING AT FOURWAY AT MAIN AND US HWY 79
TURN RIGHT TRAVEL 1/10 OF A MILE TO FOURWAY
STOP ON FRONT AND MAIN CONTINUE ON MAIN
ACROSS RAILROAD TRACKS TRAVEL 3/10 OF A MILE
TO CAMPBELL RENTAL PROPERTY TURN RIGHT GO
STRAIGHT TO THE REAR APARTMENT AT 375 E MAIN
APARTMENT #4[.]
The warrant also provided that the premises were occupied by “CALVIN CATHEY DOB
08/31/1980” and situated in Crockett County, Tennessee.
In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
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Nevertheless, appellate courts will review the trial court’s application of law to the facts
purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the
State, as the prevailing party, is “entitled to the strongest legitimate view of the evidence
adduced at the suppression hearing as well as all reasonable and legitimate inferences that
may be drawn from that evidence.” Odom, 928 S.W.2d at 23.
Initially, we note that regarding the appellant’s claim that the affidavit lacked the
information necessary to establish probable cause to obtain the warrant, the appellant’s brief
fails to make any argument or cite to any authority in support of his contention. Therefore,
the issue is waived. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b).
Regarding the appellant’s claim that the search warrant was invalid because it failed
to name the city in which it was to be executed, the United States Constitution requires that
a search warrant “particularly [describe] the place to be searched.” U.S. Const., amend. IV;
see also Tenn. Const. art. 1, sec. 7. Similarly, Tennessee Code Annotated section 40-6-103
provides, “A search warrant can only be issued on probable cause, supported by affidavit,
naming or describing the person, and particularly describing the property, and the place to
be searched. In State v. Conatser, 958 S.W.2d 357, 359 (Tenn. Crim. App. 1997), this court
explained,
A warrant satisfies this requirement if it describes the place to
be searched with such particularity that the searching officer
may with reasonable effort ascertain and identify the intended
place. U.S. v. Gahagan, 865 F.2d 1490, 1496 (6th Cir. 1989).
Tennessee law prohibits general warrants, Tenn. Const., art. I,
§ 7, and requires search warrants to describe “particularly . . .
the place to be searched.” T.C.A. § 40-6-103. This requirement
is satisfied if the description “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).
There are two purposes for the particularity requirement. State v. Mack, 188 S.W.3d 164,
172 (Tenn. Crim. App. 2004). First, it “protects the accused from being subjected to an
unreasonable search and/or seizure.” Id. It also “‘prevents the officer from searching the
premises of one person under a warrant directed against those of another.’” Id. (quoting
Squires v. State, 525 S.W.2d 686, 690 (Tenn. Crim. App. 1975)).
In arguing that the warrant was valid, the State cites Hatchett v. State, 346 S.W.2d
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258, 259 (Tenn. 1961), in which our supreme court said that “the describing of the place to
be searched by naming the occupant satisfies the [particularity] test.” The State also quotes
State v. Bostic, 898 S.W.2d 242, 246 (Tenn. Crim. App. 1994), in which our court stated,
“The 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 officer’s] actual knowledge
that the property was located, in fact, as described in the warrant.” In upholding the search
warrant in Bostic, our court also considered that the warrant named the defendant and
provided “essentially accurate” directions to his residence. Id. at 246.
In support of his claim that the warrant was invalid, the appellant contends that this
case is akin to the facts in State v. Shelly Bragg, No. 01C01-9805-CC-00236, 1999 Tenn.
Crim. App. LEXIS 146 (Nashville, Feb. 19, 1999). In Bragg, a panel of this court considered
whether a search warrant’s stating the wrong town within Humphreys County invalidated the
warrant. The court noted that during the suppression hearing, the officer who filed the
affidavit to obtain the warrant “was unable to testify as to the number of incorporated towns
located in Humphreys County.” Id. at *3. The court concluded, “The requirement that a
description ‘particularly points to a definitely ascertainable place so as to exclude all others’
is not met where the incorrect incorporated town is stated in the warrant.” Id. at *4.
Although the appellant contends that this case is comparable to Bragg, in our view, directing
an officer to the wrong town is significantly different from failing to direct an officer to any
town.
Turning to the instant case, we note that neither party called any witnesses to testify
at the suppression hearing. The better practice would have been for the parties to present
evidence concerning the validity of the warrant. Nevertheless, we can determine, albeit
barely, from the record before us that the warrant described the location of the appellant’s
residence with sufficient particularity to satisfy the particularity test. The warrant provided
detailed directions about how to get to the property, the property address, the appellant-
occupant’s name, and the county in which the property was located. Given that Crockett
County is an extremely rural county, we conclude that the warrant described the location of
the appellant’s apartment with sufficient particularity to prevent an officer from searching
the wrong residence. We note, however, that had the city or town been omitted from a search
warrant to be executed in a more urban county, the outcome of this case easily could have
been different.
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III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.
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NORMA McGEE OGLE, JUDGE
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