State v. McCormick

• Decision Date: 14 March 1979
• Citation: 584 S.W.2d 821
• Parties: STATE of Tennessee, Appellant, v. Roy Edward McCORMICK and Nancy J. Maddox, Appellees.
• Court: Tennessee Court of Criminal Appeals

Page 821

584 S.W.2d 821

STATE of Tennessee, Appellant, v. Roy Edward McCORMICK and Nancy J. Maddox, Appellees.

Court of Criminal Appeals of Tennessee.

March 14, 1979.

Certiorari Denied by Supreme Court July 30, 1979.

William M. Leech, Jr., Atty. Gen., William O. Kelly, Asst. Atty. Gen., John P. Apel, Asst. Dist. Atty. Gen., Nashville, for appellant.

Robert H. Schwartz, Nashville, for McCormick.

Harlan Dodson, III, Nashville, for Maddox.

OPINION

TATUM, Judge.

The State has brought this petition for the common law writs of certiorari and supersedeas to review the action of the trial court in granting the respondents' motion to suppress evidence in these drug cases. The trial judge granted the motion to suppress on the grounds that the search warrant used to seize the drugs was unconstitutionally issued because the affidavit for the warrant did not give a specific date on which illegal activity was observed.

The warrant was issued on the affidavit of a police officer relating facts given to him by an unnamed informant. The portion of the affidavit with which we are now concerned stated, "that while in the above described location In the past 72 hours, (the informant) did observe Roy E. McCormick, M/W, and Nancy Jeannette Maddox, F/W, in possession of a quantity of marijuana. " In granting the motion to suppress, the trial judge held that the Constitution required a calendar date (a specified day, month and year) to establish the time the illegal activity was observed and the use of the phrase "in the past 72 hours" did not meet constitutional requirements. In reaching this result, the trial judge misconstrued the language of Owens v. State, 217 Tenn. 544, 399 S.W.2d 507 (1965) and Welchance v. State, 173 Tenn. 26, 114 S.W.2d 781 (1938).

In the Welchance case, the affidavit stated: "The affiant was informed by a reliable person that the informer was on the premises and saw a quantity of whiskey delivered and put in the above-described building . . ." After quoting the affidavit, the Welchance court made this observation:

It will be noted that affiant does not disclose the date on which he received the information, nor the date when his informant visited the dwelling of plaintiff in error and drank some whisky. So far as appears from the affidavit, the visit referred to may have taken place more than a year prior to the time that it was made.

In discussing the question, the Welchance court stated that, "It is essential that the Date on which the alleged offense was committed be stated in the affidavit in order that the magistrate may determine whether probable cause existed for the issuance of the warrant." The court made other pronouncements employing the word "date." However, when we read the case in context, it is obvious that the court was not using the word "date" literally, but meant that facts must be stated in the affidavit from which the Magistrate could conclude that the defendant was at the time of the issuance of the warrant still in the unlawful possession of intoxicating liquors.

The affidavit under scrutiny in Owens v. State, supra, specified that the illegal activity was observed on the same day of the affidavit. The Owens opinion contains the following dictum:

Finally, there is authority in Tennessee holding that observations of the informer, or the affiant, must be stated to have been made On a particular named date. Welchance v. State, 173 Tenn. 26, 114 S.W.2d 781 (1938). The affidavit in the instant case meets that requirement. (Emphasis supplied.)

In Bentley v. State, 552 S.W.2d 778 (Tenn.Cr.App.1977), this court considered the validity of a search warrant based on an affidavit which gave no indication as to the time the illegal activity was observed. The search warrant was held to be void, on authority of Welchance, because "it (the affidavit) fails to state a Date when the offense was supposed to have occurred."

There are no cases holding a search warrant invalid on the ground that the affidavit procuring the warrant does not specify the day, month, and year of the observation of alleged illegal activity; the holdings are to the contrary. In Waggener v. McCanless, 183 Tenn. 258, 191 S.W.2d 551 (1946), the Supreme Court was confronted with the identical question with which we are now faced with an affidavit in the following language:

"This affidavit is based on information just received from a good and reliable person whose name affiant has disclosed to me as a Justice of the Peace. Affiant states on oath that said informant has Just told him that he had Just recently seen the above named person place a quantity of intoxicating liquors on the premises hereinafter described; also, that he has Recently seen sundry persons drinking intoxicating liquors on said premises and going there at different hours of the day and night sober and returning in a drunken condition. (In the margin) Affiant's informant says said sales have been made to him Frequently and within the last few days." (Emphasis supplied.)

The Supreme Court held the foregoing affidavit to be sufficient to support a finding of probable cause, stating:

It appears from his brief and argument that petitioner bases these assignments on the language of this Court in Welchance v. State, 173 Tenn. 26, 114 S.W.2d 781, which the Court followed in Everett v. State, 182 Tenn. 22, 184 S.W.2d 43, 44. In both these cases...