State v. Bostic

898 S.W.2d 242, 1994 Tenn. Crim. App. LEXIS 627
CourtCourt of Criminal Appeals of Tennessee
DecidedSeptember 29, 1994
StatusPublished
Cited by17 cases

This text of 898 S.W.2d 242 (State v. Bostic) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bostic, 898 S.W.2d 242, 1994 Tenn. Crim. App. LEXIS 627 (Tenn. Ct. App. 1994).

Opinion

OPINION

TIPTON, Judge.

The defendant, Jackie Bostic, appeals as of right from the Bradley County Criminal Court upon a certified question of law which is dispositive of the case. The defendant entered guilty pleas to possession of marijuana with intent to sell, a Class E felony, and possession of drug paraphernalia, a Class A misdemeanor. He was sentenced as a Range II, multiple offender to concurrent terms of two years and eleven months, twenty-nine days and fined a total of three thousand two hundred fifty dollars. The contraband resulting in his convictions was found in his home during a search pursuant to a search warrant.

[244]*244The certified question presented by the defendant, to which our review is limited, is whether the search warrant’s description of the place to be searched was sufficiently particular to satisfy state and federal constitutional requirements. The search warrant states in pertinent part:

the offense of unlawfully possessing marijuana is ... being ... committed by the defendant Jackie Bostic (on the premises) hereinafter described ...
you are hereby commanded ... to ... search ... the (premises) ... located in Bradley County, Tennessee and described as follows: From the intersection of Buck-hanon [sic] Rd. and Dockery Travel South on Buckhanon [sic] Rd. 5 tenths of a mile to Marion Circle. Turn right on Marion Circle including the house on the comer of Buckhanon [sic] and Marion the residence will be the second on the left....

The controversy surrounding the sufficiency of the description arises from the fact that Marion Circle intersects with Buchanan Road in two places, neither of which is exactly five tenths of a mile from the intersection of Buchanan and Dockery. The defendant’s home is the second house on the left from the second intersection of Marion Circle and Buchanan, not the first.

Police Officer Bill Burtt testified at the suppression hearing that he executed and prepared the search warrant. He stated that he measured the distance between the intersection of Buchanan and Dockery and the second intersection of Buchanan and Marion Circle on the odometer of his vehicle after receiving information from an informant. He said the odometer read five tenths of a mile. Before the suppression hearing, Officer Burtt again measured the distance on his odometer and it read “rolling up on five.” He stated that he measured the distance to the first intersection of Marion Circle as “halfway between three and four.” Officer Burtt testified that if he had been given the description by another officer, he would not have entered Marion Circle at the first intersection, but would have proceeded to the second.

Officer Burtt admitted knowing that there were two intersections of Marion Circle and Buchanan at the time he prepared the warrant. Also, he acknowledged that there was a second house on the left after turning onto Marion Circle from the first intersection. He stated that it was not necessary to take the informant with him to verify the location of the defendant’s house before preparing the warrant because he had been inside the home within the past year to execute another search warrant.

The defendant entered into evidence a survey of the various roads. The survey states that the distance from the intersection of Dockery and Buchanan to the second intersection of Marion Circle and Buchanan is forty-six hundredths of a mile. The survey reflects that the distance to the first Marion Circle intersection is about thirty-six hundredths of a mile.

The defendant argues that the warrant does not meet constitutional and statutory requirements that a search warrant describe the place to be searched with particularity. He contends that the warrant’s description does not point to a definitely ascertainable place which an officer could locate with reasonable certainty because neither intersection of Marion Circle is five tenths of a mile from the intersection of Buchanan and Dock-ery. Also, he argues that because an officer executing the warrant would exercise discretion in deciding where to turn off Buchanan onto Marion Circle, the description does not exclude the second house on the left close to the first intersection of Marion Circle and Buchanan. Hence, he concludes that the constitutional prohibition against general warrants was violated.

The state counters that the directions in the warrant are accurate because Officer Burtt testified that the second intersection was five tenths of a mile when measured on his odometer. Also, it argues that the warrant does not allow an executing officer discretion to choose between the two homes reached from the first and second intersections of Marion Circle and Buchanan because the affidavit states that the house to be searched was the residence of the defendant. It cites Hatchett v. State, 208 Tenn. 399, 346 S.W.2d 258 (1961), as authority that naming [245]*245the occupant of the premises satisfies the particular description requirement.

The Fourth Amendment to the United States Constitution requires a search warrant to contain a description of the place to be searched with such particularity that the searching officer may with reasonable effort ascertain and identify the intended place. See United States v. Burke, 784 F.2d 1090, 1092 (11th Cir.), cert. denied, 476 U.S. 1174, 106 S.Ct. 2901, 90 L.Ed.2d 987 (1986). Article I, Section 7 of the Tennessee Constitution prohibits general warrants and T.C.A. § 40-6-103 requires search warrants to describe particularly the property and the place to be searched. See Hampton v. State, 148 Tenn. 155, 252 S.W. 1007 (1923). This requirement is met 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). Discrepancies between the warrant’s description with regard to distances to the place to be searched and the actual distance to the building searched do not invalidate the warrant if this test is satisfied. See, e.g., Hatchett, 346 S.W.2d at 259; State v. Wright, 618 S.W.2d 310 (Tenn.Crim. App.1981); Feagins v. State, 596 S.W.2d 108 (Tenn.Crim.App.1979).

The defendant makes much of the discrepancy between the distance to the intersection of Marion Circle stated in the warrant as five tenths of a mile and the survey’s distance of forty-six hundredths of a mile. However, the Fourth Amendment does not require the specificity sought by conveyors of property in describing the place to be searched. See United States v. Burke, 784 F.2d at 1092. We conclude that it was reasonable for the officer executing the warrant to rely upon his odometer to measure the distance to the appropriate intersection and that such a distance as stated in the warrant was sufficiently accurate under the circumstances in this case.

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Cite This Page — Counsel Stack

Bluebook (online)
898 S.W.2d 242, 1994 Tenn. Crim. App. LEXIS 627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bostic-tenncrimapp-1994.