### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE February 7, 2

001 Session
STATE OF TENNESSEE v. EDWARD D. COFFEE Appeal from the Co

urt of Criminal Appe

als Criminal Court for Wilson County No. 98-0018 J. O. Bond, Judge

No. M1998-00472-SC-R11-CD - Filed August 29, 2001

Edward D. Coffee was indicted for possession of cer

tain controlled su

bstances with inte

nt to sell and possession of drug paraphernalia. Because the judicial commissioner failed to make and

retain an exact copy of the

original search warrant as required by Tennessee Rule of Criminal Procedure 41(c), the trial court sup

pressed the evide

nce recovere

d in the search and dismissed the indictment. The Court of Criminal Ap

peals affirmed t

he trial court’s j udgment, and we now also affirm. Tenn. R. App. P. 11 App eal by Permiss

ion; Judgment of the

Court of Criminal A

ppeals Affirmed
A DOLPHO A. B IRCH , J R ., J., delivered the opinion of the court, in which E. R ILEY A NDERSON , C.J., F RANK F. D ROWOTA , III, J ANICE M. H OLDER , and W ILLI AM M. B ARKER , JJ., joined.
Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor Gener al, Lucian D. Geise, Assistant Attorney General, Tom P. Thompson, Jr., District Attorney Genera l, D avid E. Durham, Assistant District Attorney General, for the appellant, the State of Tennesse e. Hugh Green, Lebanon, Tennessee, for the appe llee, Edward D. Coffee.
OPINION I. Facts and Procedural History
On Decembe r 6, 1997, Detective Steven N. Lowe

ry applied f

or a search war

rant from a Wilson County judicial commissioner. L owery’s affi davit stated that on the previous day, a confidential informant had been fitted with an electronic monitoring device and given $70. It further stated that the informant then purchased marijuana from Edward D. Coffee, the appellee



### . The commissioner issue

d the search war

rant, and Low

ery and oth

ers executed it . From Coffee’s residence, they confiscated $2,423, $125 in foo d stamps, and several plastic bags containing cocaine powder and marijuana.-2-

Coffee filed a moti o n to suppress the seized evidence, alleging several violations of Tennessee Rule of Criminal Procedure 41(c). The motion included an allegation that “the Judicial Commissioner issuing the warrant failed to keep an exact copy of the original of

said search warrant as part of his official records as required by Rule 41(c).” The assistant district attorney stipulated that this allegation was true. The trial court found that the fai lure to mak e copies of the warrant violated one of the mandatory provisions of Rule 41(c) and granted the motion to suppress. Bec

ause no other evidence existed upon which to prosecute Coffee, the trial court dismisse

d the indictment. The State appealed, and the Court of Criminal Appeals affirmed. We granted review to determine whether the judicial commissioner’s failure to make and retain an exact copy of the original search warrant requires suppression of the evidence seized. We hold that it does, and ac cordingly, we affirm the judg

ment of the Court of

Criminal Appeals.
II. Standard of Review
“When reviewing a trial court’s ruling on a motion to suppress, ‘[q]uestions 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.’” Statev. Carter , 16 S.W.3d 762, 765 (Tenn. 2000) (quo ting State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996)). “[W]hen a trial court’s findings of fact at a suppression hearing are based on evidence that does not involve issues of credibility, a reviewing court must examine the record de novo without a presumption of correctness.” State v. Binette , 33 S.W.3d 215, 217 (Tenn. 2000). In either ca se, “‘[t]he applica

tion of the law to

the facts

. . . is a question of law which this Court reviews de novo.’” Carter , 16 S.W.3 d at 765 (qu oting State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997)). The question whether Rule 41(c) of the Tennessee Rules of Criminal Procedure requires suppression of the evidence in this case is a question of law which we review de novo with no presumption of correctness afforded to the judgment of the court below.
III . Analysis
Rule 41 of the Ten nessee Ru les of Criminal Procedure authorizes a search and seizure of private property if

such property

is evidence of the commission of a criminal offense, was obtained by criminal action, o

r is intended for u

se in committing a criminal offense. Subsection (c) provides in pertinent part,

If the magistrate is satisfied that grounds for the application [for a search] exist or that there is probable cause to believe that they exist, the magistrate shall issue a war ran t identifying the property and naming or describing the pers on or place t o be searched. . . . The magistrate

shall prepare an original and two exact copies of the search warrant, one of which shall be kept by the magistrate

as a part of his or her official records, and one of which shall be left withperson or persons on whom the search warra nt is served. . . . Failure of the magistrate

to make said original and two copies of the search warrant1 When Talley was decided, the requireme nts now found i n Rule 41(c)

were codif

ied at Tenn.

Code Ann. § 40- 518 (1959).

2 See United States v.

Chadwick , 433 U.S. 1, 10, 97 S. Ct. 2476, 2482, 53 L. Ed. 2d 538 (1977 ) (“Once a lawful search has begun, it i s also far more likely

that it will not e

xceed proper bounds when it is done pursuant

to a judicial authorizati

on ‘particul

arly descri

bing the place t

o be searched and the pers ons or things to be seized.’ ”)
3 See Wayne R. LaFav e, Search and Seizure , § 4.3 (a) & (b) (3d ed. 199 6); Note, The Constitutionality of t he Use of Unreco rded O ral Testimo ny to Establish Probab le Cause for Search W arrants , 70 Va. L. Rev . 1603, 16 10- 15 (1984). -3-

or failure to endo r se thereon the date and time of issuance and the na me of the officer to whom issued, or the failure of the serv in g officer where possible to leave a copy withthe person or persons on whom the search warrant is being served, shall make any search conducted

under said search warrant an illegal search and any seizure thereunder an illegal seizure

. (Emphasis

added.) Thus, the

rulenot only requires probable cause to issue a search warr

ant, it also imposes specific p

rocedural safe

guards.
These proc edura l safeguards are intended “to secure the citizen against carelessne ss and abuse in the issuance an

d execution of sear

ch warrants .” Talley v. State , 345 S.W.2d 867, 869 (Tenn. 1961). 1
“There is no writ more calculated to be ab used in i ts use than the

search warrant, for wi

th it any home may be entere

d and the inmates disturbed, humiliated, and deg rade d. To prevent such a possibility from false informants made to officers inspired by overzeal, or acting from expediency, or obeying the com man d ut ter ed b y a

mob impulse, the provisions of the Co nstitution and st

atu tes found force and command observance.”
Id

. (quoting Hampton v. State , 252 S.W. 1007, 1008 (Tenn. 1923)). The provision at issue, that a magistrate

prepare and re

taina copy of the search warrant, endeavors to pre vent improper searches and facilitate judicial review of whether a search was executed within the scope of the warrant. The rule achieves its goals in that a written record of the specifics of the search

stifles the ever-present temptation for an officer

to conduct a sear

ch and justify

it l ater. 2 Additio nally, the copy of the warrant enables review of the original boundaries of a search; without a

n exact copy

of the warrant, review is compromised bec ause the crit

ical fact s and details of the warrant cannot

be precisely determined. 3 It is for these reasons that it is imp

ortant t o retain an exact copy of the warrant identi fying

the property

or person to be se

arched, and it is f

or these same re

asons that th

i s requirement

has been strictly enforced by our cour ts for many years. See Talley , 345 S.W.2d at 868;4 See also State v. Gambrel , 783 S.W.2d 19 1, 192 (Tenn. Crim. App. 1989) (upholding the search because the

copy created was found sufficient). -4- Statev. Brewer , 989 S.W.2d 349, 353-54 (Tenn. Crim. App. 1997); State v. Steele , 894 S.W.2d 318, 319 (Tenn. Crim. App. 1994). 4
As stated in Talley , “‘Words could not be plai n er, and [the proce dural safegua

rds against abuse] are mandatory.’” 345 S.W.2d at 869 (cit ation omitted). Ac

cordingly , th e judicial commissioner’s failure to make a nd retain a copy

of the search wa

rrant so that a record of

the precise limits of the search could be maintained requires suppression of the evidence seized.
IV. Conclusion
For the foregoing reasons, we conclude that the judgment of the Court of Criminal Appeals should be, and is, hereby, affirmed. Costs of this appeal are taxed against the State of Tennessee for whi ch ex ecut ion may i ssu e if nece ssa ry.

___________________________________ ADOLPHO A. B IRCH, JR., JUSTI CE