State v. MacK

188 S.W.3d 164, 2004 Tenn. Crim. App. LEXIS 44
CourtCourt of Criminal Appeals of Tennessee
DecidedJanuary 22, 2004
StatusPublished
Cited by3 cases

This text of 188 S.W.3d 164 (State v. MacK) 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. MacK, 188 S.W.3d 164, 2004 Tenn. Crim. App. LEXIS 44 (Tenn. Ct. App. 2004).

Opinions

OPINION

JOHN EVERETT WILLIAMS, J.,

delivered the opinion of the court,

in which GARY R. WADE, P.J., joined. ROBERT W. WEDEMEYER, J., filed a separate opinion dissenting in part and concurring in part.

The defendants appeal their convictions of possession of more than 0.5 grams of cocaine with intent to deliver. The defendants allege error in the trial court’s failure to suppress evidence seized pursuant to a search warrant and denial of their motions for judgment of acquittal. Upon [167]*167review, we reverse the failure to suppress the search warrant and reverse and dismiss the convictions of both defendants. The conviction of Stacy Mack is reversed due to insufficiency of the evidence, and Martress Shaw’s conviction is reversed due to insufficiency of evidence after suppression of the search warrant.

I. Factual Background

This case arises from the execution of a search warrant on Defendant Mack’s residence and the subsequent seizure of drugs and other evidence by law enforcement officials on November 2, 2001. The Laud-erdale County Grand Jury indicted Defendant Mack and Defendant Shaw for possession with intent to deliver more than 0.5 grams of cocaine. Before trial, Defendant Mack and Defendant Shaw filed motions to suppress the drugs and drug paraphernalia seized from Defendant Shaw’s car and Defendant Mack’s residence. Following the suppression hearing, the trial court denied the Defendants’ motions to suppress the evidence. The Defendants were tried on April 29, 2002, in the Lauderdale County Circuit Court, and a jury convicted both of possession of more than 0.5 grams of cocaine with intent to deliver, pursuant to Tennessee Code Annotated Section 39-17-417 (Supp.2001). The trial court sentenced Defendant Mack to an eight year community corrections sentence and Defendant Shaw to twenty-three years in prison. Both Defendants timely filed motions for judgment of acquittal or a new trial, which the trial court denied. The Defendants now appeal.

A. Suppression Hearing

At the suppression hearing held on April 22, 2002, Detective Jeff Tutor, a drug investigator for the Ripley Police Department, testified that he drafted an Affidavit for Search Warrant that he presented to Judge Janice C. Craig on October 30, 2001, requesting a search warrant to search the premises at 209 Volz Circle in Ripley, Tennessee. The affidavit and the search warrant were typed on the same page, with the affidavit appearing above the search warrant. The affidavit stated:

Personally appeared before me, Investigator Jeff Tutor, Ripley Police Department, and makes oath that he has reasons to believe that there is probable cause for believing that Stacy Mack— is/are in possession of the following described property, to wit: Cocaine Base and all drug paraphernalia related to the storage, packaging, sale, and/or distribution of Cocaine Base contrary to the laws of the state of Tennessee, upon the following described property to wit: a wood ffamed single story dwelling with green siding and black shingle roof situated at 209 Volz Cir. in Ripley/Lauderdale County Tennessee, and his reasons for such belief are that Affiant has received information within the last 72 hours from a conftden-tial and reliable informant that Cocaine Base could be purchased at the above said residence. Acting upon this information Affiant did meet with, search and wire, with an audio monitoring device, a conñdential and reliable informant. Said informant then went to the above said residence to attempt to purchase Cocaine Base. Affiant followed said informant to the said residence and observed said informant at said premises and Affiant heard the transaction where the said informant purchased a substance from an individual at said residence. Said informant then returned to Affiant with a substance that did Held test positive for Cocaine Base. He therefore asks that a warrant issue to search the person and premises of said Stacy Mack as above described in said County, where he believes said Cocaine Base [168]*168and all paraphernalia related to the storage, packaging, sale, andlor distribution of Cocaine Base is/are now possessed, contrary to the Laws of Tennessee.

Based on the evidence presented in the affidavit, the judge granted Detective Tutor’s request for a search warrant. The search warrant, which was also prepared by Detective Tutor, stated:

Proof by affidavit having been made before me by Investigator Jeff Tutor, Ripleg Police Department that there is probable cause for believing the Laws of the State of Tennessee have been and are being violated by Stacy Mack by having in his/her possession Cocaine Base, and all paraphernalia related to the storage, packaging, sale, and/or delivery of Cocaine Base, Cocaine, Marijuana being 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; you are therefore commanded to make an immediate search of the person and premises herein above described for the following property Cocaine Base and all drug paraphernalia related to the storage, packaging, sale, and/or distribution of Cocaine Base and if you find same, or any part thereof, to bring it forthwith before me, at my office, in Ripley, of said County and State.

Detective Tutor testified that he did not type “209 Volz Circle” on the search warrant, rather he typed the address on the affidavit. On cross-examination, Detective Tutor admitted that, had he been unfamiliar with the case, he would be not be able to locate Defendant Mack’s residence using only the search warrant.

Following the suppression hearing, the trial court denied the Defendants’ motions and made the following findings of fact:

1. That the defendants have standing to challenge the validity of the search warrant.
2. The description of the premises to be searched contain the address of “209 Volz Cir. in Ripley” as part of the affidavit for search warrant. Below the affidavit in the search warrant is the warrant itself. Although “209 Volz Cir.” is not included in the warrant, the affidavit and the warrant itself adequately describes the property to be searched.
3. The search warrant was directed to search the premises of Stacy Mack.
4. Stacy Mack was left a copy of the warrant by the officers.

B. Trial

The following evidence was presented at the trial of the Defendants held on April 29, 2002. Detective Tutor testified that on the night of November 2, 2001, law enforcement officers from the Ripley Police Department and the Lauderdale County Sheriffs Department executed a search warrant on the residence of the Defendant Mack, located at 209 Volz Circle1 in Ripley, Lauderdale County, Tennessee. Officer Gregg Land stated that he, along with Detective Jeff Tutor, Detective John Thompson, Detective Brian Kelly, Officer Chris Bailey, Officer Debbie Kirkpatrick, and Tim Mirick executed the search warrant, and searched the above address.

Detective Thompson testified that, as the detectives approached the house, they saw a dark-colored Lincoln parked outside [169]

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Related

Rogers v. Hampton
E.D. Tennessee, 2019
State of Tennessee v. Calvin Cathy
Court of Criminal Appeals of Tennessee, 2011
State v. MacK
188 S.W.3d 164 (Court of Criminal Appeals of Tennessee, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
188 S.W.3d 164, 2004 Tenn. Crim. App. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mack-tenncrimapp-2004.