# FILED
September 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COUR T OF TENNESSEE AT JA CKSON

STATE OF TENNESSEE, ( FOR PUBLICA TION ( Appellee, ( Filed: September 28, 1998 ( ( v. ( Madison Circuit ( ( Hon. Whit LaFon, DENNIS KEITH and, ( Judge TIMOTHY COLLINS ( ( Appellants. ( No. 02S01-9604-CC-00035

For State-Appellee : For Defendants-Appellants : John Knox Walkup Joe H. Byrd, Jr. Attorney General & Repor ter Jackson, Tennessee Michael E. Moore Solicitor General Elizabeth T. Ryan Assistant Attorney Gener al Nashville, Tennessee James G. Woodall District Attorney General Twenty-Sixth Judicial District Jackson, Tennessee Nick Nicola Assistant District A

ttorney General Jackson, Tennessee



### O P I N I O N

AFFIRMED. DROWOTA, J.-2- We gra nted thi s appeal to consid er two issue s: 1) wheth er the inve stigative automobile stop in this case w as based upon reasonable suspici on, supported by specific and articulable facts , that a crime was being committed; and 2) whether the search warrant in this case is invali d because the issuing judge failed to complete the jurat attesting that the affidavit in support of i ssuance of the warrant was executed under oath by the affiant.
Upon careful consideration, we agree with the Court of Criminal Appeals that the investigativ

e automobile stop was based upon reasonable suspicion and therefore constitutionally permissible. W e have also determined that although it is preferable that every affidavit contain a completed jurat, th e omission of, or defect in, the jurat does not affect the validity of a warrant issued upon proba ble cause when it is proven by extrinsic evidence that the supporting affidavit was properly sworn by the affiant. Accor dingly, we affirm the j udgment of the Court of Criminal Appeals which rever

sed the trial court’s g rant of the defendant’s motion to suppress. The cause is remanded to the trial court for f urther necessary proceedings.

FACTUAL BA CKGROUND On September 9, 1993, Investigator Danny Mullikin of the Drug Task Force of the 26th Judicial Distri ct, received information from a confidential informant that the defendants, Dennis Keith and Tim othy Collins were storing illegal drugs in their home located at 225 Hollywood in the City of Jackson. The informan t also-3-

provided a physical

description of the defendants. This c onfidential informant previously had suppl ied the Task Force with reliable information whi ch had resulted in five separate arrests for narcotic-r elated offenses and the seizure of contraband. Responding to thi s information, Investigat or Mullikin initia

ted surveillance of the resi dence located at 225 Holly wood, and on one occasion, he observed a red Honda CRX vehicle parked outside the residence.
Approximately three day s after receiving the information from the confidential informant, on the evening of Se ptember 12, 1993, Investigator Mullikin received a telephone call from an anonymous informant who al so related that the residents of the house located at 225 Hollywood wer

e involved in the poss

ession and sale of ille gal drugs. The inf ormant claime d to have observed illegal drugs inside the residence wi thin four days of the call. The i nformant further claimed that shortly before placing the call he observed marijuana in a red Honda CRX vehicle which w

as parked outside the residenc e and saw both suspects pre sent at the residence. The anonymous infor mant supplied defendant Collins’ name as the owner of the Honda and also pr ovided a physical des

cription of both defendants which matched the descr iptions previously

given by the confidenti al informant. Finally, the anon ymous informant said the defendants w orked during the day but used the Honda to sel l and deliver illegal drugs late at night

.

Less than one hour after receiv ing the phone call from the anony mous informant, Investigator M ullikin and another officer again set up surveillanc e near-4-

the defendants’ residence. They obs erved the red Honda vehi cle at the residenc e, and ap proximat ely five mi nutes af ter the of ficers ar rived, two individuals matching the physical descriptions given by both i nformants came out of the residence and entered the automobi le. When the vehicle left the drivew ay and traveled north on Hollywood, the officers followed and stopped it approximately one-fourth o f a mile from the residence.
Defendant Collins was driving the automobile and Keith was the passenger. After confirming that Colli ns owned the car, Inves tigator Mullikin obtained permission from Collins to search the vehicle. During the search, the officers discovered a small amount of marijuana and two Lorazepam tab lets, a Schedule IV controlled substance. C ollins said the Lorazep

am tablets had been given to him by a female friend and admitted that he did not have a prescri ption for the drugs.
The officers placed Collins and Kei th under arrest and then soug ht a warrant to search the residence. Investigator Mullikin provided an affidavit in support of issuance of the search w arrant, and in it he recounte d the fact that illegal dru gs had bee n found in the def endants ’ vehicle d uring the investigat ive stop. A search warrant was issued by Walter Drake, Municipal Court Judge of the City of Jackson. The officers ex ecuted the search warrant and seized from the residence several pounds of marijuana, marijuana seed, X anax, LSD, several other pills, and drug par aphernalia.-5- As a result of the search, the de fendants were charged by indictment with possession of marijuana with intent to sell or deli ver, possession of Schedule IV controlled substances w ith intent to sell or del iver, and possession of dr ug paraphernalia. The defendants moved to s uppress the evidence seiz ed during the search of the Honda automobile and duri ng the search of their resi dence. They argued that their constitutional rights under Ar ticle I, Section 7 of the Tennessee Constitution and the Fourth Amendment to the United States Constitution had been violated because the officers lacked reasonable suspici on to initiate the investigative s

top of their automobile. The defendants also argued that the evidence seized duri ng the search of their resi dence should be suppressed as “fruit of the poisonous tree” bec ause a portion of the information contai ned in the affidavit supporting issu ance of the search warrant w as derived from the illegal investigative s

top.
Following a hearin g, the trial judge found the investigative s top of the defendants’ automobile constitutional ly invalid and, ther efore, granted the motions to suppress the evidence s eized during the searc

h of the vehicle and during the search of the defendants’ residence. The State sought and obtained an interlocutory appeal from the trial court’s decis ion. Finding that the ev idence in the record preponderated against the trial court’s conclusion that the ano nymous tip was not sufficiently re liable to establish reaso nable suscipion to support th e investigative stop of the defendants’ vehicle, the Court of Criminal Appe als reversed the judgment of the t rial court and remanded for further proceedings.-6-

Thereafter, the defendant s filed a joint application for permission to appeal in this Court, arguing first

that the Court of Criminal Ap peals erred in concluding that the evidence preponderated agai nst the trial court’s decision, and second, that the search of the defendants’ residence w as constitutionally i nvalid because the affidavit supporting issu ance of the search warrant do es not contain a written
ce rt if ic at e of t he

issu in g j ud ge

at te st in g t ha

t t he af fi da vi t h ad be en sw

or n. We granted the defendants’ application for pe rmission to appeal and, for the reasons, hereafter explained, now affirm the judgment of the Court of Criminal Appeals.

STANDARD OF REVIEW When reviewing a trial cour t’s ruling on a motion to suppress, “[q]uestions of credibility of the witnesses, the weight and value of the evidence, and r esolution of conflicts in the evidence ar e matters entrusted to the tri al judge as the trier of fact.” State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). We afford to the party prevailing in the trial court the strongest legitimate view of the evidence and all reasonable and legitimate i nferences that may be drawn fr om that evidence. The findings of a trial court in a suppression hearing will be upheld unless the evidence preponderates against those find ings. Id . The application of the law t o the facts found by the trial court, however, is a question of law which this Court reviews de
novo . State v. Yeargan , 958 S.W.2d 626, 62 9 (Tenn. 1997).

REASONABLE SUSPICION1 The F ourth Am endm ent is app licable to the s tates throu gh the F ourteen th Am endm ent. Map p v. O hio , 367 U.S. 643, 655, 81 S. Ct.1684, 1691, 6 L. Ed.2d 1081 (1961).The text of t he Fourth Amendment is as follows: “The right of the peopl e to be secure i n their p ersons, houses, papers, and eff

ects, agai nst unreasonabl e searches and seiz ures, shall not be vi olated, and no warr ants shall is sue , but u pon prob able c aus e, su ppo rted b y oath or aff irm ation , and partic ularly describ ing the plac e to be se arched , and the p ersons or things to be seized .”

2 Articl e I, Secti on 7 provides “ that the people shall

be secure in t heir persons, houses, papers and possessions,from unreasonable sear ches and seizur

es; and that

general warr

ants, whereby an off icer may be commanded to search suspected places, with out evidence of the fact com mitte d, or to seize any pe rson or pe rson s not nam ed, w hos e off enc es ar e not partic ularly describ ed and suppo rted by evide nce, are dange rous to liber ty and oug ht not to be granted .”

-7- In this Co urt, the d efenda nts initia lly conten d that th e investiga tive automobile stop was unconstitutional because the ano nymous informant’s tip did not demonstrate the informant’s veracity or basis of knowledge as required by this Court’s decisions in State v. Jacumin , 778 S.W.2d 430 (Tenn. 1989) and State v. Pulley , 863 S.W .2d 29 (T enn. 199 3). The S tate resp onds tha t the inves tigative stop in this case was constitutionally permi ssible, considering the totality of the circumstances, including the information which prev iously had been provi ded by the confidential informant and the independe nt police corroboration, because the law enforcement officers had reasonable suspicion, supported by specific and articulable facts, to believ e that the defendants were committi ng a crime.

Both the Fourth Amendment 1 to the United States Constitution and Article I, Section 7 2 of the Constitution of Tennessee prohibi t unreasonable searches and seizures and direct that search warrants be issued upon probable cause. These constitutional provis ions are designed to “safeg uard the privacy and s ecurity of individuals against arbitrary invasions of government officials.” Camara v. Municipal Court , 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.E d.2d 930 (1967);-8-

see also State v. Downey , 945 S.W.2d 102, 106 (Tenn. 1997); Sneed v. State , 221 Tenn. 6, 13, 423 S.W.2d 857, 860 (1968).
Accordingly, under both the federal and state constitutions, warrantless searches and seizures s uch as the investigati ve automobile stop whic h occurred in this case are presumed to be unreasonable. Evidence discovered as a result thereof is subject to suppre ssion unl ess the pr osecutio n demon strates b y a preponderance of the evidence that the search or seizure was conducted pursuant to an exception to the warrant require ment. Whren v. United States , 517 U.S. 806, 116 S. Ct. 1769, 1772, 135 L .Ed.2d 89 (1996); Delaware v. Prouse , 440 U.S. 648, 654, 99 S. Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); Coolidge v. New Hampshire , 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); Yeargan , 958 S.W.2d at 630; State v. Watkins , 827 S.W.2d 293, 295 (Tenn. 1992). One such

exception was

announc

ed in the landmar k case o f Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), in whi ch the United States Supreme Court held that a law enforcement officer may tempor arily seize a citizen if the officer has a r easonable suspicion, based upon specific and articulable facts, that a cr iminal offense has been, is being, or is about to be committed. An investigative stop of an automobile is al so constitutional if law enforcement officials have a reasonabl e suspicion, supported by specific and articulable facts, that the occupants of the vehicle have committed, are committing, or are about to c ommit a criminal offense. United States v. Cortez ,3 Id ., 407 U.S. at 146, 92 S. Ct. at 1923.
4 At the ti me of the decisio n in Ad ams , the two- pronged veraci ty and basi s of knowledge test was the standard employed by federal court s to analy

ze the rel iabil ity

of an informant’s tip.The federa l courts did not adop t the “totality of the c ircum stance s” test un til 1983. See Ill inois v.Gates , 462 U .S. 213, 10 2 S.Ct. 23 17, 76 L.E d.2d 527 (1983).

-9- 449 U.S. 411, 417, 101 S.Ct. 690, 694,66 L.Ed.2d 621 (1981); Prouse , 440 U.S. at 663, 99 S.Ct. at 1401; Yeargan , 958 S.W.2d at 631; Watkins , 827 S.W.2d 294. Moreover, the facts forming the basis of an officer’s reasonabl e suspicion need not rest upon the personal knowledge or observation of the off icer. Indeed, in Adams v. Willia ms , 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972), the United States Supreme Court rejected the argume nt “that reasonable cause for a stop and frisk can onl y be based on the officer’s pers onal observation” 3 and sustained a Terry investigative s

top and frisk undertaken on the basis of a tip given to the officer by a known informant who had provided reliable information in the past. Id . 407 U.S. at 147, 92 S.Ct. at 1924. 4
This Court also has upheld the constitutionality of inv estigative stops of motor vehicles based upon reasonable suspicion, and we have approved such stops even though the specific and articuable facts estab lishing the reasonable suspicion were deriv

ed from anonymous tips. Simpson , 968 S.W.2d 776, 781 (Tenn. 1998); Pulley , 863 S.W.2d at 29. However, when law enforcement o fficials initiate an investigative stop as a result of information provided by an anonymous informant, Tennessee law requi res some showing of both the informant’s veracity or credibility and h is or her basis of knowl edge. Id .; compare Jacumin , 778 S.W.2d at 436 (discussing the showing required when an anonymou s informant’s tip is relied upon to establish probable cause for issuance of a warrant). While-10-

independent police corroboration may be relied upon to ma ke up deficiencies, “each prong represents an independently important consi deration that must be separately considered and satisfied in some way.” Simpson , 968 S.W.2d at 781; Pulley , 863 S.W.2d at 31.
We have recognized, however, that [r]easonable suspicion is a less demanding standard than prob able cause not only in the sense that reasonable suspicion can be established with informati on that is different in quantity or content than that required to establ ish probable cause, but also in the sense that reasonable suspicion can arise from informa tion that is less reliable than that requi red to show probable cause

. Pulley , 863 S.W .2d at 32, quoti ng Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990) (emphas is added). As a result, the twopronged test of reliability is not as strictly applied if the anonymous informant’s tip is being used to establis h reasonable suspicion for an i nvestigative stop rather than probable cause for a search or seizure. Simpson , 968 S.W.2d at 782. In evaluating the reliab ility of an anonymous informant ’s tip, the circumstances under which a tip is given are important and may sufficiently relate the informant’s basis of knowledge, even in th e absence of an explicit stat ement by the informant. Id. For example, if an informant repor ts an incident at or near the time of its occurrence, “a court can often assume that the repo rt is first-hand, and hence reliable.” Id . In addition, if a tip is contemporaneously corroborated by police, it is reasonable to infer eyewitness reliability of the informant. Id . Police corroboration of several aspects of an informant’ s report may also satis fy unknowns about an-11-

informant’s credibility

. Id . Establishing that an anonymous informant’s data is reliable may also sati sfy the credibility prong. State v. Ballard , 836 S.W.2d 560, 562 (Tenn. 1992).
Considering the information provided by the anonymous informa nt in this case in light of these well-settled principles of law, we conclude that the proof in this record preponderates against the trial court’s finding that the veracit y and reliability of the tip were not sufficiently es tablished. The anonymous informant provided law enforcement offici als with the name of one of the defendants, a physical descriptio n of both defendants, a description of the v ehicle which they allegedly were using in drug transac tions, a description of their schedule, and the location of the defendants’ residence in which illegal drugs were being stored. In addition, the anonymous informant tol d officers that the two suspect s and the vehicle were then pr

esent at the house located at 225 Ho llywood. Finall y, the anonymous informant claimed to have observed marijuana inside the vehicle shortly before p lacing the call and also claimed to h ave observed illegal d rugs inside the house within the previous four days.
Some of the information provided by the anonymous informant was immediately corroborated by the information previo usly provided by the confidential informant, including the location of the residence, the physical description of the defendants, and the pr esence of illegal drugs

inside the residence within the previous days. In addition, the officers themselves previously-12-

had observed at 225 Holly wood a vehicle matching the description giv

en by the anonymous informant.

Other details were cor

roborated when the officers ar rived at the scene within an hour of the tip. F or example, as claimed by the informant, both the vehicle and two indi

viduals matching the des criptions given by

both of the informants were present at the residence when police arrived. In addition, police observed the suspects leave the house in the Honda late in the evening, which was behavior consis

tent with the pattern of operati on described by the anony mous informant. As previously stated, if a tip is contemporaneous ly corroborated by police, it is reasonable to infer the first-hand, eyew itness reliability

of the informant. In our view,the circumstances under w hich the tip was giv

en, and the police corroboration of sev eral key aspects of the tip sufficiently satisfy the twopronged t est of re liability.
As the United States Supreme Cour t recently has recog nized, [a]rticulating precisely what ‘reasonable suspicion’ and ‘probable cause’ mean is not possible. They are common sense, nontechnic al conceptions that deal with the factual and practical cons iderations of everyday life on w

hich reasonable and prudent men, not legal technicians, act.
Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 1661, 134 L.Ed.2d 911 (1996). In evaluating whether a police officer has a reasonable suspicion, supported by specific and ar ticulable facts, a court must consider the totality o f the circumstances. Yeargan , 958 S.W.2d at 632; Watkins , 827 S.W.2d at 294; Cortez ,-13-

449 U.S. at 417, 101 S.Ct. at 695. Circumstances relevant to the evaluation include, but are not limited to, the officer’s persona l objective observations, information obtained from other polic e officers or agencies, information obtained from citizens, and the pattern of operation of certain offenders. A court must also consider the rational inferen ces and deductions that a train ed officer may draw from the facts and circumstances know n to him--inferences and deducti ons that might well elude an untr ained person. Yeargan , 958 S.W.2d at 632; Watkins , 827 S.W.2d at 294; Cortez , 449 U.S. at 418, 101 S.Ct. at 695; Terry , 392 U.S. at 21, 88 S.Ct. at 1880. Finally, the content, quality, and quantity of information possessed by police must be assessed in determining whether it is sufficiently reliable to support a finding of reasonable suspicion. Id

. The officer, of course, must be ab le to articulate something more than an inchoate and unparticular ized suspicion or hunch . The Fourth Am endmen t requires some min imal level of objec tive justification for making the stop. That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence.
Sokolow , 490 U.S. at 7-8, 109 S.Ct. at 1585 (internal citations and quotations omitted); see also Yeargan , 958 S.W.2d at 632.
Considering the totalit

y of the circumstances in this case, including the personal observations of the officers, the information provid ed by the confidential informant, and the information provi ded by the anonymous informant, w e conclude that the evidence preponderates against the trial cour

t’s finding and instead demonstrates that the officers had a rea sonable suspicion, supported by specific-14-

and articulable facts, that the d efendants were committing or about to commit a criminal offense.

VALIDITY OF AFFIDA VIT SUPPORTING SEARCH WARRA NT Having determined that the investigative automobile stop was constitutionally v

alid, we must next cons ider the defendants’ contention that the evidence seized from the r esidence pursuant to the war rant should be suppressed because the judge failed to sig n the jurat attesting that the affidavit was execut ed under oath. This is an issue of first impression in Tennessee.
A brief summary of the relevant facts is necessary to place this issue in context. Since the trial court in this case supp ressed the evidence seiz ed pursuant to the warrant as “fruit of the poisonous tree” upo n finding the initial investigative stop invalid, the defendants did not seek to have the warrant itself declared invalid in the trial court. While the def endants mentioned the issue in their brief to the Court of Cr iminal Appeals, they did n ot diligently purs ue this issue until they filed their j oint application for permissi on to appeal in this Court. In that application the defendants argued both th at the Court of Criminal Appeals erred in reversing the trial court’s judgment with respect to the investigative stop, and also that the evidence seized pursuant to the warrant should be suppressed becau se the affidavit supporting is suance of the warrant had not been signed by Investigator Mull ikin, the affiant, and also because J udge Drake had failed to complete the portion of the affidavit k nown as the jurat, wh ich is the written5 See D.T. McCall & Sons v. Seagraves , 796 S.W.2d 457, 464 (Tenn. App.1990) (defi ning “jurat” and citing case s); see also State v. Colon , 644 A.2d 877, 879 (Conn . 1994).

6 Subsection (e)provides t hat “[i ]f any matter properl y incl udable is omit ted from the recor

d, is improperly included, or is misstated therein, the record may be corrected o r modified to conform to the t ruth. Any

differen ces regarding whether the recor d accurately

discloses what

occurred in the trial court shal l be submitted to and sett led by t he trial court regar

dless of wheth er the recor d has been transmitt

ed to the appel late court . Absent ext raordinar y circumstances, the determinat ion of the tri al court is conclusive . If necessar y, the appellat

e or tri al court may di rect that a suppllemental record be certified and transmitted.” See also Bradshaw v. Daniel , 854 S.W.2d 865, 868-69 ( Tenn. 1993).

-15- certificate of the issuing judge attesting that the aff iant submitted the affidavit under oath. 5
This Court granted the defendants permission to appeal. Thereafter, the State moved to supplement the reco rd, stating that the unsig ned copy of the affidavit contained in the recor d on appeal actually w

as not the affidavit upon which Judge Drake had based his determination of probabl e cause. The defendants filed a response in oppositio n to the State’s motion. This Court remanded the matter to the trial judge to determine whether the record should be supplemented pursuant to Rule 24(e), 6 Tenn. R. App. P.
Following a hearin g, the trial court per mitted the State to supplement the record with the affidavit which actually h ad been presented to Judge Drak e and upon which he had based his det ermination of probable cause. Thoug h the affidavit submitted in support of the warrant contained the si gnature of the affiant, Investigator Mil liken; the jurat attesting that the affidavit had been giv en under oath was incomplete. However, the trial court permitted the State to also supplement the appellate record w ith affidavits from Judge Drake and Investigator Mullikin stating that the affidavit had been sworn by Investigator Mullikin before-16-

issuance of the warrant ev en though Judge Drake failed to complete the jurat. The supplemental record was then transmitted to the Clerk of this Court.
In this Court, the defendants arg ue that an affidavit supporting issuance of a search warrant must c ontain a jurat completed by the issuing judge attes ting that the affidavit was executed under oath. According to the defen dants, extrinsic evidence is not a permiss ible means to prove that an affidav it was properly sworn. Because the affidavit in this c ase did not contain a completed j urat on its face, the defendants contend that the search warrant issued in relian ce upon the affidavit is invalid and evidence s

eized pursuant to the w arrant should be suppressed.
While conceding that a jurat is the pr eferred means of establishing that an affidavit was executed under oath, the State argues that it is not the on ly permissible means of satisy ing the oath requirement. According to the State, an incomplete or defective jurat does not vitiate the validity of a warrant when it is proven by extrin sic evidence that the suppor ting affidavit was pr

operly sworn by the affiant. The State asserts that the w arrant in this case is valid, despite the incomplete jurat, because the affida vits of Investigator Mullikin and Judge Drake establish that the supporting affidavit was properly

sworn.
We begin our analysis of this issue b y reiterating that u nder both the federal and state constitutions no warrant is to be issued except upon pro bable
cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Jacumin , supra ; Tenn. Code Ann. § 40-6-103 (1997 R epl.). The Fourth7 Pursuant to t hat statut e “[a] sear

ch warrant can onl

y be issued o n probable cause, sup porte d by af fidav it , nam ing or desc ribing the p erso n, an d par ticula rly des cribin g the prop erty, and the place to be searched .” (Emphasis adde d.)

8 Tha t statu tory pr ovisio n spe cifies that “[ t]he m agis trate , befo re iss uing t he w arra nt, sh all exa min e on o ath th e com plaina nt an d any w itnes s the com plaina nt m ay pro duc e, an d tak e the ir affidavits in w riting, and ca use the m to b e subs cribed by the person s ma king the m. T he affida vits must set forth f

acts tendi ng to establ ish the gr ounds of the appl icati on or probabl e cause for believing tha t they exist.”

9 In perti nent part the Rule specifi es that “[ a] warrant

shall i ssue only on an affidavi t or affidavits s worn to b efore the mag istrate and establishin g the gro unds o f issuing th e warra nt.”

-17- Amendment to the United States Constitution explicitly mandates that search warrants issue only “upon probable cause, supported by Oath or affirmation .” Though, Article I, Section 7 of the Tennessee Constitution does not require an oath or affirmation, it precludes issuance of warrants ex cept upon “evidence of the fact committed.” Moreover,the General Assembly has e xpressly direct

ed that a search warrant may be issued only upon a written and sworn affidavit which contains allegations est ablishing probable cause.Tenn. Code Ann. § 40-6-1037 and -104 8 (1997 Repl.); Tenn. R. Crim. P. 41(c); 9 Jacumin , 778 S.W.2d 432. Likewise, this Court previously has recognized that a written and sworn affidavit containing allegations from which the magistrate can determine whether probable cause exists is an ind ispensable prerequisit e to the issuance of a search w arrant in this State. Id .; see also State ex rel. Blackbur n v. Fox , 200 Tenn. 227, 230, 292 S.W.2d 21, 23 (Tenn. 1956).

The law in this State is clear that a written and sworn affidavit is an essentia l prerequi site to th e issuanc e of a vali d search wa rrant. Howe ver, we have found no constitutional or statutory rule stating that an indispensa ble prerequisite to a valid affidavit is a jurat -- a written cert ificate of th e issuing judge-18-

attesting that the affiant executed the af fidavit under oath. An affidavit generally has been defined in case law as “a statement in writi ng, signed, and made upon oath before an authorized magistrate.” Watts v. Carnes , 51 Tenn. 532, 534 (1871). Certainly no

thing in that definition suggests that a jurat is an essential component of an affidavit. Moreover, Tennessee decisions addressi ng issues similar to the one raised b y this appeal lend support to the proposition that a jur at is not an essential prerequis ite to a valid affidavit s o long as proof is offered to establish that the affidavit w as properly swor

n.
For example, in Wiley v. Bennett , 68 Tenn. 581 (1877), this Court considered whether an attachment was rendered invalid because the issuing clerk failed to attest that the supporti ng affidavit had been sworn . The Court first noted that “the affidavit was signed, and purports to have been sworn to on its face.” Id

. at 582. Next, the Court ob served that the clerk ha d testified that the affidavit “w as duly sworn to before i ssuance (of the attachment), but by oversight the attestation of the fact was omitted.” Id . Finally, in rejecting the challenge, this Court emphasized that “[t]he fact that i t was sworn to is

the substantial matter, and the omission of the clerk to do his duty by attesting it, cannot be allowed to prejudice the party.” Id . This principle was reaffirmed five years later in Agricultural Association v. Madis

on , 77 Tenn. 407, 409 (1882) (“When the affidavit w as actually sworn to and the clerk fails to attest it, it is not fatal. . . .”). Though these decisions do not address an affidav it that is given i n support of a search warr ant, they are persuasive authority for the propositi on that a defective or incomplet e jurat does not invalidat e an affidavit when it is established by other proof tha t the10 In Harve y v. State , 166 Tenn. 227, 60 S.W.2d 420 (1933) and in W att , supra , the affid avits w ere n ot sw orn n or sig ned until af ter the warr ant o r attac hm ent h ad iss ued . Acc ordin gly, in those cases, this Court held that

the magistrat

e had no authority to issue the warr ant or attac hm ent b eca use no af fidav it had supp orted its iss uan ce. T his C ourt r efus ed to perm it extrin sic proof to cont radict the express terms of the affidavi t and retr

oactively confer authority upon the issuing j udge. In t his appeal,there is no attempt to of fer extri nsic proof t

o contradict

the express terms of the affid avit which re cites on its fa ce that it was being give n unde r oath.

-19- affidavit was properly

sworn. 10

Moreover, we obser

ve that a majority of other state courts considering whether a search war

rant is void if based upon an affidavit which contains an incomplete or defective jur at have concluded that a jur at is not an essential element of an affidavit but is simply evidence of the f act that the affidavit was duly sworn by the affiant. In the face of an incomplete or defective jur at, these state courts allow extr

insic evidence to prov

e that the affidavit was properly sworn. State v. Colon , 644 A.2d 877 (Conn. 1994); Bigler v. State , 602 N.E.2d 509 (Ind. App. 1992); State v. Journey , 562 P.2d 138 (Kan. App. 1977); Powell v. State , 355 So.2d 1378 (Miss. 1978); People v. Rodriguez , 541 N.Y.S .2d 491 (N .Y.App. D iv. 1989); People v. Zimmer , 490 N.Y.S.2d 912 (N.Y.App. Div. 1985); State v. Flynn , 235 S.E.2d 424 (N.C. App. 1977); White v. Oklahoma , 702 P.2d 1058 (Okla. Cr

im. App. 1985); State v. Nunn , 783 P.2d 26 (Or. App. 1989); Huff v. Commonwealth , 194 S.E.2d 690 (Va. 1973); see also Land Clearance for Redevelopment Authority v. Zitko , 386 S.W.2d 69 (Mo. 1965 ) (omission of jurat will not render properly executed affidavit a nullit y); 3 Am.Jur.2d 478 Affidavit s §17 (1986); 2A C.J.S. 467 Affidavits § 31 (1972) (“The j urat is not such a part of an affidav it that its omission will render the affidavit a nullity, at least where the affidavit is otherwise properly executed. Thus, ordinaril y a jurat is not essential to an affidavit if the fact of the11 The followi ng jurisdi ctions have h eld the omissi on of a jurat to be fatal

to the val idit

y of an affidavi t. We note that i n these juri sdicti ons, eit her the stat e constit ution or a statutor y provi sion explicitly

required that an affi davit cont ain the si gnature of t he officer administeri ng the oath. Comm onwealth v. Dozier , 366 N.E .2d 1270 (Mass . App. 197 7); Comm onwealth v. McAfee , 326 A.2d 52 2 (Penn . 1974); Elam v. Yale Clinic , 783 S.W.2d 638, (Tex. App. 1989). Though none involv e an affidav it given in support of a search warran t, the f ollowi ng state court

s have held, in the absen ce of a s tatutory prov ision, that a va lid affidavit requ ires a com pleted jura t. Ex Parte Finance America Corp. , 507 So .2d 458 ( Ala. 1987 ); Phoebe Putney Mem. Hosp. v. Skipper , 487 S.E.2d 1 (Ga. Ap p. 1997) ; Hough v. Weber , 560 N.E .2d 5 (Ill. App. 1 990).

-20- due administration of the oath is otherwise shown.”) 11 The majority rule is consistent with prior Tennessee case law on the subject, and it is sound as a matter of policy and practi ce.
Tennessee law is clear that in determining whether or not probable cause supported issuance of a search w arrant only the information contained within the four corners of the affidavit may be considered. Jacumin , 778 S.W.2d at 432. However, we ar

e not confined to the four corners of the a ffidavit in determining whether it has been properly sworn. Accordingly, we conclude that although it is preferable that every affidav it contain a completed jurat, an incomplete or defective jurat does not invalidate a warrant issued upon probable cause if it is proven by extrin sic evidence that the suppor ting affidavit was pr

operly sworn by the affiant. Any other conclusi on would impose an undue penalty upon law enforcement for an inadvertent omiss ion on the part of the issuing judge. Colon , 644 A.2d at 883.
Applying that rule to the record in this appeal, we reject the defendants’ claim that the search warrant is invalid. The proof establishes that the af fidavit was given under oath. First of all, the affidavit recites on its face that it was being given under oath. Investigator Milliken signed the affidavit. The search warrant in-21-

the record recites that it was based upon an affidavit g iven by Investigator Milliken. Judge Drake signed the search warrant. Fi nally, the record contai ns affidavits from both Investigator Mi lliken and Judge Drake stating that the affidavit w as given under oath. Accordingly, despite the incomplete jurat, the other evidence in this record establishes that the affidavit was properly sworn.

CONCLUSION For the reasons previously stated, we conclude that the investigative stop in this case was based upon reasonable suspicion and therefo re constitutionally permissible. We also conclude that the sear ch warrant issued upon a written and sworn affidavit. Accor

dingly, we affirm the j udgment of the Court of Criminal Appeals which rever

sed the trial court’s g rant of the defendants’ motion to suppress. This cause is remanded to the trial court for furth er necessary proceedings.

______________________________ FRANK F. DROWOTA, III, JUSTICE
Concur: Anderson, C.J., Holder, J. Birch, J. - See Separate D issenting Opinion.