State v. McColgan

• Decision Date: 10 December 1981
• Docket Number: No. 2,2
• Citation: 631 S.W.2d 151
• Parties: STATE of Tennessee, Appellee, v. Ronald Commer McCOLGAN, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 151

631 S.W.2d 151

STATE of Tennessee, Appellee, v. Ronald Commer McCOLGAN, Appellant.

No. 2

Court of Criminal Appeals of Tennessee, at Jackson.

Dec. 10, 1981.

On Petition for Rehearing Dec. 31, 1981.

Permission to Appeal Denied by Supreme Court March 15, 1982.

William M. Leech, Jr., Atty. Gen., Jerry L. Smith, Asst. Atty. Gen., Nashville, Billy C. Blow, Asst. Dist. Atty. Gen., Huntingdon, for appellee.

William A. Derington, Jr., Camden, for appellant.

OPINION

WALKER, Presiding Judge.

In three cases tried together, the appellant, Ronald Commer McColgan, was convicted of (1) possession of marijuana, and sentenced to pay a fine of $1000; (2) concealing stolen property over the value of $200, the property of Elbert Hatley, and sentenced to three to five years; and (3) concealing stolen property over the value of $200, the property of Rick Mullins, and sentenced to three to five years in the penitentiary, concurrent with his other sentence.

In the first case the appellant was jointly indicted with Vernon Wayne Barrett, Donald Eugene Rich, James Henry Siglow, and Alice Ann Dobra for possession of marijuana with intent to sell. In the second and third case, he was jointly indicted with the same codefendants except Ms. Dobra for grand larceny, receiving stolen property and concealing stolen property over the value of $200. The cases were severed as to Barrett and abated by death as to Rich. The trial judge found no evidence of the receipt of any of the property from a third person and granted the appellant's motion for acquittal as to those counts. The jury found Siglow and Dobra not guilty of all charges. Thus McColgan is the only defendant before us.

On his appeal McColgan raises 16 issues which we group as I, challenges to the searches of the premises; II, challenges to the procedure in the trial of the cases; III, challenges to the sufficiency of the evidence; and IV, challenge to the denial of probation.

For reasons hereafter given, we agree with the appellant's challenge to the sufficiency of the evidence in the third case and reverse and dismiss it. We find no reversible error as to the other issues and affirm the first and second convictions.

As a result of information received from a reliable informant, Benton County Sheriff Bobby Shannon obtained a search warrant at 7:30 p. m., July 13, 1979, to search certain premises about seven miles from Big Sandy for marijuana and marijuana paraphernalia. The warrant listed three buildings to be searched: a house, an old grocery store and a fenced enclosure known as "The Fort." Barrett was listed as the possessor of the property.

With a number of officers, Sheriff Shannon went to the described premises at 7:00 a. m., July 14, to execute the search warrant. TBI Agent Carpenter and Trooper Hendrix went to the front door while Sheriff Shannon with the warrant in his possession went to the back door. The officers at the front door knocked and announced their purpose before entering; Sheriff Shannon opened a screen door and entered from the rear without announcing. Carpenter and Hendrix were inside at the appellant's bedroom when the sheriff arrived from the back of the house. The appellant and his wife and their baby were in bed when the officers arrived. Sheriff Shannon read the warrant to the appellant and had him dress. He also gave the appellant a copy of the warrant.

Mr. Rich was also in the house and Mr. Siglow and Ms. Dobra were in another bedroom. The officers collected a number of guns and unloaded them.

In the course of the search, the officers found a quantity of marijuana. Based on the informant's report, the sheriff had reason to believe that stolen goods were also on the premises and he brought with him a list of stolen property in the event he saw some.

In the execution of the original search warrant, the officers found a garden tiller in the back yard which they believed had been stolen. They also found in the house and in "The Fort" a stereo component system and a television set. The sheriff used his list to identify the garden tiller and the television set as stolen goods.

During that morning the sheriff left the premises and obtained two more search warrants, one authorizing the search of an abandoned car for marijuana and the other to search the house for certain stolen property. These warrants specified that the property was owned by Barrett and occupied by McColgan. In the trunk of the car, officers found marijuana, a chain saw and a trolling motor. The sheriff called Elbert Hatley to the scene and Hatley identified much of the property, including the chain saw, trolling motor and garden tiller as belonging to him. While the searches were conducted, the appellant and other occupants of the house were taken outside and either placed in one of the officer's cars or allowed to stand nearby. The search was completed about 2:00 p. m.

At trial Hatley identified his property and testified that it was stolen in January, 1979. Mullins testified that his television and stereo system were taken in April, 1979.

McColgan did not testify at the suppression hearing. At trial he and his wife testified that they knew nothing about any marijuana being on the premises, that the house was almost fully furnished when they moved in and that McColgan did not buy or conceal any of the items found there. He said that he had never examined the abandoned car and knew nothing about the property found in its trunk. By their testimony they did not know that there was marijuana or stolen property there. Mrs. McColgan said that they did not rent "The Fort."

I-The Searches

Following the motion to suppress, the trial judge filed a well reasoned memorandum overruling the motion. We hold that he correctly held the evidence admissible.

The appellant argues that the original search warrant did not properly describe the premises and therefore his motion to suppress was good. He contends that there are two basic flaws in the warrant: (1) It stated that the premises were owned and occupied by Vernon Wayne Barrett; and (2) that it covered multiple premises and is therefore invalid.

The fact that the warrant stated that Barrett owned and occupied the premises does not make the warrant invalid. The test of the description of premises to be searched is whether or not it will enable an officer to locate the place to be searched and thus prevent the officer from searching the wrong premises. Hatchett v. State, 208 Tenn. 399, 346 S.W.2d 258 (Tenn.1961); Squires v. State, 525 S.W.2d 686 (Tenn.Cr.App.1975).

The fact that the wrong occupier is named in the warrant does not change the premises to be searched. This warrant describes the location of the property and the three structures on it. The officers had no discretion to search any other premises and in fact searched the correct premises.

The fact that the warrant named three specific structures to be searched does not mean that it authorized the search of "multiple premises." The appellant's reliance on State v. Bass, 153 Tenn. 162, 281 S.W. 936 (1925), and Worden v. State, 197 Tenn. 340, 273 S.W.2d 139 (1954), is misplaced.

In Bass the warrant found defective authorized the search of premises on which there were three structures, but did not specify which or any of the three structures were to be searched. In Worden the warrant authorized the search of premises at a certain street address. At that address there was a restaurant on the first floor and a hotel on the second floor with a lobby and 12 or 15 rooms. That warrant was insufficient because it authorized the search of multiple premises.

In the case before us, the warrant specified the three structures on the premises the officers were authorized to search: (1) an old grocery store; (2) a fenced enclosure known as "The Fort," and (3) a dwelling house with wood siding. The warrant sufficiently described the premises and there was no cause to suppress the evidence for this reason.

The appellant complains that the search was invalid because the officers failed to "knock and announce" before entering the premises.

At the front door, TBI Agent Carpenter and Trooper Hendrix knocked and announced their purpose and waited before entering. Carpenter testified that either he entered first or that he and Sheriff Shannon entered at approximately the same time. The sheriff thought he entered first, but actually neither he nor the other officers could see who entered first. After knocking and announcing, Carpenter and Hendrix were already inside and at the appellant's bedroom when the sheriff approached from the back of the house. From this record it appears that Carpenter and Hendrix either entered first or at the same time as the sheriff. It was not necessary for either of them to have actual possession of the warrant to give proper notice of their authority and purpose. This issue is meritless.

The appellant attacks the seizure of stolen goods when the original warrant specified only marijuana and related paraphernalia. He points out that the sheriff took with him a list of stolen property.

In Jones v. State, 523 S.W.2d 942, 946 (Tenn.Cr.App.1975), we said:

"The rule that general searches are unwarranted does not prevent the executing officer, having a search warrant describing property and being lawfully on the premises, from seizing other...