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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
March 1, 2011 Session STATE OF TENNESSEE v. BOB J. SPIVEY AND MISTY BUCKNER
Direct Appeal from the Circuit Court for Dyer County Nos. 09-CR-486; 09-CR-486A Lee Moore, Judge

No. W2010-01853-CCA-R3-CD - Filed September 19, 2011

The State appeals from the Dyer County Circuit Court's dismissal of two indictments charging the Defendant-Appellees, Bob J. Spivey and Misty Buckner, with possession with intent to sell or deliver more than 0.5 grams of a Schedule II controlled substance, a Class B felony. Both defendants moved to suppress evidence obtained during a police search of the Buckner home. The trial court granted these motions upon finding that the search warrant inadequately described the property to be searched, and the charges against Spivey and Buckner were dismissed. In this appeal, the State claims that the trial court erred by granting the motions to suppress. Upon review, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and R OBERT W. W EDEMEYER, JJ., joined. Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; C. Phillip Bivens, District Attorney General; and Lance E. Webb, Assistant District Attorney General, for the Appellant, State of Tennessee. Noel H. Riley, II, Dyersburg, Tennessee, for the Defendant-Appellee, Bob J. Spivey. James E. Lanier, District Public Defender; H. Tod Taylor, Assistant Public Defender, Dyersburg, Tennessee, for the Defendant-Appellee, Misty Buckner. OPINION Background. Buckner and Spivey lived together at Buckner's home, one of two single-story buildings located at 506 Christie Street. The building Buckner rented was blue and the other building, rented by an individual unrelated to these proceedings, was tan. Upon

execution of a search warrant, the police found crack cocaine, a handgun, and a digital scale at the Buckner home. Buckner and Spivey were indicted and Buckner1 filed a motion to suppress all evidence obtained during the search of the Buckner home. Buckner argued the search warrant was defective because it authorized the search of both rental buildings on the property. Suppression Hearing. The search warrant, admitted into evidence as exhibit three, described the property to be searched as follows: 506 Christie Street is a single story, single family dwelling with tan siding. The residence can be found by traveling south on Main Street from downtown Dyersburg, TN. Continue south until reaching Christie Street. Turn west on Christie Street and 506 Christie Street sits on the northeast corner of Christie Street and Brigance Avenue. The search warrant was accompanied by an affidavit signed by Officer Mason McDowell of the Dyersburg Police Department. The affidavit provided, in pertinent part, that an informant saw a controlled substance "inside the residence of 506 Christie Street." The informant reported that the residence belonged to Spivey. Buckner's name is not mentioned in the search warrant or the affidavit. Patricia Sollis, the owner of the property at 506 Christie Street, testified that the property contained two buildings, 506 Christie ("the blue building") and 506 Christie Rear ("the tan building"). Sollis explained that when the search warrant was executed, Buckner lived in the blue building and another renter lived in the tan building. Sollis denied telling Officer McDowell prior to the execution of the search warrant that the tan building was not occupied by a renter. Sollis told Officer McDowell that the tan building was not occupied "a couple of months" before the suppression hearing. Sollis was certain it was after the search warrant was executed because "we didn't even know [about the execution of the search warrant] until we went out there and our door was broke in . . . . And at that time [her husband] called the police to see about getting the door replaced." She said the Register's Office listed the two buildings on her property as 506 Christie and 506 Christie Rear. Prior to the search warrant application for 506 Christie Street, Officer McDowell conducted an online search of the property through the State of Tennessee Property Assessment Data Page. The search revealed that two buildings were listed under the address of 506 Christie Street. Officer McDowell examined the real estate assessment data provided by the State of Tennessee, which described the tan building as a "detached garage unfinished."
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Spivey's motion to suppress was not filed until after Buckner's motion to suppress was granted.

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Officer McDowell said that he spoke with Sollis or her husband before the search warrant was executed to confirm that neither Buckner nor Spivey had access to the tan building. He stated that "from that point on he was not interested in the search of [the tan] property." Officer McDowell conceded that he mis-read the satellite photograph and, as a result, the search warrant erroneously described the Buckner home as a tan building. Officer McDowell explained, "I could see in the satellite photography that the garage was tan. It was, I guess, my assumption that the residence was tan as well." Asked whether he had "passed by this residence and looked at it" prior to the search warrant, Officer McDowell replied: No, I had not specifically before we got ready to do this and that's strictly for surveillance reasons . . . I was familiar with the area. I was familiar with the house. I knew where it was but no, I did not go down there to get a color of it for fear of ruining our investigation. Officer McDowell did not realize that there was a discrepancy in the color of the building in the search warrant. From his perspective, "there was only one single family dwelling located on the property and the second [building] was a detached garage." Officer McDowell believed, "barring the wrong color," he searched the residence described in the search warrant. He did not enter or search the tan building. The trial court granted the motion to suppress by written order. The trial court excluded the evidence based on the following: The Court finds that the property was adequately described as 506 Christie Street. However, the officer made a mistake as to the color of the residence to be searched. Although Officer McDowell believed the rear building to be an undetached [sic] garage and states under oath that it was not his intention to search that area, the search warrant actually shows a tan building at 506 Christie. It is undisputed from Ms. Sollis'[s] testimony that the tan building was, in fact, being occupied by a renter in August of 2009. . . . It is clear to the Court that there was a slight mistake made in colors in this case. Otherwise the affidavit appears to be proper. If the property known as 506 Christie Rear had not had someone living there or if it was simply a garage the Court would feel that the description was adequate. The property is described accurately enough for the officer conducting the search to search the blue house. The description of the property in the warrant, however, is not sufficient to prevent the officers from searching the tan house at 506 Christie which would have been the premises of a totally different person. Although it is an unfortunate mistake and the Court hesitates to suppress evidence in this case, the Court does not feel that -3-

Tennessee and United States Constitutional requirements are met so that the search warrant would be valid. Following the grant of the motion to suppress, the trial court entered an order dismissing the indictment against Buckner. The order stated that the prosecution would be unable to proceed with its case without the suppressed evidence. Spivey later filed his motion to suppress based on the same grounds. The trial court granted Spivey's motion to suppress and entered an order dismissing Spivey's indictment. The State filed a timely notice of appeal and a motion to consolidate these two cases. This court determined that Buckner's and Spivey's cases involved common questions of law and fact; therefore, it granted the State's motion pursuant to Rule 16(b) of the Tennessee Rules of Appellate Procedure. ANALYSIS The State claims the trial court erred by granting the motions to suppress. The State contends the search warrant's description of the property was adequate because it specified the location of Buckner's building on the property. The State also asserts that "any ambiguity in the description was cured by the executing officer's knowledge of the place to be searched." In response, Buckner argues that the search warrant was defective because it allowed the police to search both residences on the property, including the residence of someone who had no connection to the criminal investigation. She contends that Officer McDowell's knowledge of the property did not cure this defect because he was not informed that the tan building was occupied by a renter. Spivey claims the search warrant only authorized the search of a tan residence; therefore, the police were prohibited from searching the blue building where Buckner lived. Standard of Review. The standard of review applicable to suppression issues involves a mixed question of law and fact. State v. Garcia, 123 S.W.3d 335, 342 (Tenn. 2003). "[A] trial court's findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise." State v. Cox, 171 S.W.3d 174, 178 (Tenn. 2005) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The Tennessee Supreme Court explained this standard in State v. Odom: Questions 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. The party prevailing in the trial court 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. So long as the greater weight of the evidence supports the trial court's findings, those findings shall be upheld. -4-

Odom, 928 S.W.2d at 23. Both the federal and state constitutions require that a search warrant particularly describe the place to be searched. See U.S. Const., amend. IV; Tenn. Const., art. I,

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