### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs F ebruary

25, 2003 STATE OF TENNESSEE v. RONALD C. FLOYD Direct Appeal from the Criminal Court for Cum berland County No. 6113 Leon C. Burns, Jr., Judge

No. E2001-03044-CCA-R3-CD August 12, 2003
The Defend ant, Rona

ld C. Floy d, pled g uilty to possess ion of Dia

zepam, a Sc

hedule IV controlled substance, with the intent to sell or del ive r, a Class D felony. Pursua nt to Tennessee Rule of Criminal Procedure 37, the Defendant reser ved as a certified question of law the issue of whethe r the trial court erred by

denying his motion to suppress. In this appeal, the issues presented are: (1) whether the fai lure to p rovide the Defendant with a copy of the search warrant at or be fore the initiation of the search invalidated the search, a nd (2) whether

the description of the property to be seized as stated in the warrant was so genera l as to render the warrant invalid. The judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
R OBER T W. W EDEMEYER , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and J OHN E VERE TT W IL LI AMS , JJ., joined. C. Douglas Fields, Crossville, Tennessee, for the appe llant, Ronald C. Floyd.
Paul G. Summers, Attorney Gene ral and Reporter; Kim R. Helper, Assistant Attorney Gene ral ; Will ia m E. Gibson, District Attorney Gene ral; and Gary

McKenzie, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION
I. FACTUAL

BACKGROUND
On September 24, 2000, Officer Becky Seiber approached a

1994 Mitsubishi Eclipse driven by the Defe ndant, Ron ald C. Floyd, nea r Mr. Edd’s saloon in Crossville, Tennessee. Officer Seiber then stopped the vehicle because she noticed it was blocking traffic on the street in front of the bar. When the Defendant

parked the vehicle on the south side of the saloon’s parking lot, Officer Seiber noticed that

the car was also missing a license plate. When she approache d the vehicle, the officer-2-

then noticed a

marijuan a ciga

rette bu tt inside the cab of

the car and beg an to ques tion the De fendant

. The Defendant identified

himself to

Officer Seiber but stated that he did not have a driver ’s license. Noting that the Defendant appeared to be ne rvous, the officer asked him to exit the vehicle. The Defendant stated

that he was nervous because of the marijuana in his car and stepped

out of the car. Officer Seiber noticed that while he was stepping out of the car, the Defend ant plac ed a smal l plastic bag co ntaining

a white su

bstance in his m outh and swallowed it. Because of this, she handcuffed the Defendant, place d him under arrest and put him in her patrol car. During the subsequent search of the Defendant’s vehicle, Officer Seiber discovered

a small amount of marijuana, drug para

phernalia, an d a locked safe, which the Defenda nt stated that he wantedback. Officer Seiber arra nged to have the

vehicle towed to an impound

garag e, and the

case was then turned over to Detective Larry H amilton.
Detective Hamilton s ought a search warrant for

the safe based on the Defendant’s a ctions on the night of the arrest and also based on the fa ct that an inves tigat ion of the safe by a police dog indicated that illegal contents were inside. A search warr ant was issued, indicating that there was probable cause to believe that

“drug s and drug

procee ds” wer

e inside th

e locked box. An aff

idavit attached to the warrant also indicated that Detective Hamilton had re ason to believe the search was necessary because of the marijuana and drug paraphernalia found inside the car by Officer Seiber, because of the Defendant’s actions in swallowing the plastic bag prior to his arrest and beca use the Defendant

had been convicted of drug sales f ive times inthe past nine yea rs. After receiving the search warrant, Detective Hamilton discovered seve nty-one tablets of Diazepam, commonly known as Valium, inside the safe.
Detective Ha mi lton testif ied that a t the time he went to c ourt to obt ain the se arch wa

rrant, the Defendant was still in jail, but he stated that the Defend ant had be en rele ased from jail by the time the search wa

rrant was issued . He stated on cross-examination that he did not recall if the Defendant

was still in jail at the moment the judge issued the warrant. However , he also testified that the pol ice “cou ldn’t get [the Defendant] to come into the office” after they had obtained the warran t. Detective Hamilton stated that he did not recall the exact date that the Def endant was served withthe warr

ant, but he maintained that the police were able to serve the Appe llant with a copy of the warrant several day s after the search was conducte d. During the pre- trial pro ceeding s, the trial court found that the failure to serve the Def endant witha copy

of the se arch wa

rrant pr ior to its execution did not render the search an illegal one , as the Defendant was served with a copy within a few days of the sea rch. It also found that the war rant was not inv alid for v aguen ess because the aff idavit of Detective Hami lton and th e searc h warra nt, which were both served on the defendant at the same time, sufficiently indicated, w hen considered together, that the items to be searched for were illegal drugs.
In this appe al, the issues presented are: (1) whether the f ailure to provide the Defe

ndant with a copy of the

search warrant at or before the

initiation of the search invalidated the search, and (2)-3-

whether the descript ion of the p roperty to be seize d as state d in the wa rrant wa s so gen eral as to render the warrant invalid. We conclude that the execution of the search wa rrant was valid and that the warrant adequately

described the items believed to be in the D efendant ’s po ssess ion. W e therefore affirm the judgment of the trial court.
II. AN ALYS IS
A. Service of the Search Warrant
The Defendant contends that the failure of the police to serve him with a copy of the sea rch warrant prior to conducting the search of the saf e invalidates the search and renders illega l the seizure of the Diazepam. Entering into a locked container or device found inside a vehic le during a search of that vehicle requires a se arch warrant. See Stat e v. Ca bbage , 649 S.W.2d 589, 592 (Tenn. 1983). Rule 41 of the Tennessee Rules of Criminal Procedure gove rns the legality of

searches and seizures and is intended to “‘secure the citizen against ca relessness and a

buse in the i ssuance and e xecution of search warrants.’” State v. Ste ele , 894 S.W.2d 318, 319 (Tenn. Crim. App. 1994 ) (quoting Talle y v. Sta te , 345 S.W.2d 8 67, 869 (T enn. 1961 )); see gener ally Tenn. R. Crim. P. 41. Rule 41(c ) of the T ennesse e Rules of Criminal Pr

ocedure states, in pertine nt part, th at the failure of the serving officer where possible to leave a copy

with the person or persons on who m the search warrant is being se rved . . . shall make any search conducted

under said search warrant an illeg al search and any seizure thereunder

an illegal seizure. Tenn. R. Crim. Pro. 41(c) (emphasis added).
The Defend ant alleg es, pursu ant to R ule 41(c) of the Tennessee Rules of Criminal Procedure , that the sear ch warr ant in this c ase shoul d have be en invali date d be cause the Defendant was not served with a cop y of

the warr ant prio r to the warrant’s execution, because the police made no reasona ble efforts to serve the Defendant prior to executing the warr ant, and because no exigent circumstances existed re quiring immediate

executi on of the warrant. However, this is not the standard imposed by law. Rule 41(c) requires service prior to th

e executi on of a se arch wa rrant on ly “where possible.” Id. The TennesseeSupreme Court has noted that where it is undisputed that no one is present on whom an officer could serve a c opy of a search warrant at the time it is to be executed, it is not possi ble for the officer to leave a copy with the person being served. See State v. Reid , 91 S.W.3d 247, 276 (Tenn. 2002). Furthermore, even if the Defe ndant was still in j ail at the time the warrant was authorized by the magistrate judge, and hence easy to locate by the off

icer conducting the search, the police were still not required to persona lly delive r him a copy prior to conducting the search. See id.
The proposition that the police are not always required to leave a copy of the search warrant witha defendant

prior t o executin g the wa rrant is f urther s upported

by o ther sec tions within

Rule 41. Subsectio n (d) of Ru le 41 allo ws an off

icer to “ leave th

e copy and rec eipt [for t

he prope rty taken] at a place from which the property was taken” as an alternative to giving a copy and receipt to “the person from whom or from whose premises the prope rty was taken” w

hile the se arch is being-4-

executed. Id. In the case at ba r, the police personally

delivered a copy

of the search warrant and a receipt for the property

found in the safe to the Defendant within a few day s of the execution of the warran t. In ou r view, th

e offic ers comp li ed with the r equirements of Rule 41. Therefore, we conclude that the e xecution of

the sear ch warr ant was v alid. This issue is without meri t. B. Description of the Property to be Seized
The Defendant next contends that the search warran t in this case was too general bec ause the warrant authorized a search

for “drugs and drug proceeds.” The Fourth Amendment to the United States Constitution

require s a sear

ch warr ant to con tain a particular description of the items to be seized. See State v. Henning , 975 S.W.2d 290, 296 (Tenn. 1 998); see also U.S. Const. amend. IV. Furthermore, Article I, § 7 of the Tennessee Constitution prohibits general warrants, and Tennessee Code Annotated § 40-6-103 requires search warran ts to descr ibe part icularly the plac e and pro

perty to be searched. State v. B ostic , 898 S.W.2d 242 , 245 (Te nn. Crim. A

pp. 1994) ; see also Tenn. Const. art. I, § 7; Tenn. Code Ann. § 40-6-103. To sa tisfy the particular descript ion requi rement, a warrant “‘must enable the searc her to reasonably

ascer tain and identify the thing s which are authorized to be seized.’” State v. Meeks , 867 S.W.2d 361, 372 (Tenn. Crim. App. 1993) (quoting United States v. Cook , 657 F.2d 730, 733 ( 5th Cir. 198 1)); see also He nning , 975 S. W.2d at 296. “Where th e p ur po se of

th e w ar ra nt is to fi nd sp ec if ic pr op er ty, the propert

y sh ould be so p articula

rly d escribed as to preclude the possibility of seizing a ny other prope

rty. . . . [I ]f the purpose of the warrant [is] to seize . . . any proper ty of a spec ified character which, by reason of its character, and of the place where and the circumstanc es under which it may be foun d, if found at all, would be illicit, a description, save as to such character , place and circumstances, would be unnecessary , and ordinar ily impossible.” Lea

v. State , 181 S.W.2d 3 51, 352-5 3 (Tenn. 1944); see also Henning , 975 S.W.2d at 296.
The Defend ant cites State v. Johnson to support his contention that the search warran t in this case is invalid as describing the property too generally

. 854 S.W.2d 897 (Tenn. Crim. App. 1993). In Johnson , this Court indicated that a search warrant using the phrase “ stolen pr

operty and drug s” would fail for l ack of particularity. See id. at 900. The facts of this case, however, ca n be distinguished from Johnson because of the me

ntion of ill

icit drug s in other

parts of the warrant at issue. In Johnson , we recognized that search warrants specify

ing “drugs” may

be upheld where other portions of the warrant refer to the drug s as illegal. See id. As we statedin Johnson , “‘[m]arijuana’ or ‘any illegal drugs’ would be sufficient to satisfy the constitutional and statutory require ments,” while the mere use of the word “drugs” wou ld be inad equate

. Id. ; see also State v. Smith , 867 S.W.2d 343, 349-50 (Tenn. Crim. App. 1993). Here, the affidavit of Detective Hamilton sugge sts in four se

parate instance s that the p

hrase “drug s and drug

procee ds” clearly r

efers to illegaldrugs. First, the affidavit mentions the conduct of the Defe ndant dur ing his a rrest, a t which time

he swallo wed “a s m all bag con taining a white powder substance.” Then, the affidav it mentions the “marijuana and paraphernalia” found in the samecar in which the safe was located. Ne xt, Detec tive Hamilton noted that a “drug dog” had a-5-

“positive reaction” to the safe. Finally , the affidavit noted that the Defendant had been c on victe d of drug sales five times since 1991.
Ta ken in its totality, the warrant here clearly indica

tes that the phrase “drug s and dru g procee ds” was intended to encompass illegal drugs and the procee ds from the

ir sale. Because the four references to illicit substances in the aff i davit clarify the

general refere

nce to drugs and drug proceeds later in t

he warr ant, the trial court properly concluded that the warrant adequately described the illegal items believed to be in the safe.
II I. CONCL

USION
We conclude that the trial court properly found that the execution of the search warrant was valid and that the sub se quent seizure of evidence was also valid as a matter of law. We further conclude that the trial court was correct in finding the desc ription of the property to be seized in the search warrant adequately

described the illegal

items which were believed to be in the Defenda nt’s possession. Accordingly , the judgment is AFFI RMED.

_________ ____________________

_ _ ROBERT W. WEDE MEYE R, JUDG E