IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 18, 2001 Session

STATE OF TENNESSEE v. RONALD STANLEY

Direct Appeal from the Criminal Court for Davidson County

No. 98-D-2923 Steve Dozier, Judge

No. M2000-00790-CCA-R3-CD - Filed May 11, 2001

The Defendant pled guilty to selling over twenty-six grams of cocaine, possession with intent to sell

over 300 grams of cocaine, and possession with intent to sell between ten and seventy pounds of

marijuana. As to his conviction for possession with intent to sell over 300 grams of cocaine, the

Defendant reserved the following certified question of law: whether the search warrant was void for

execution more than 120 hours after issuance. We hold that the five-day period in which a search

warrant must be executed is to be computed using calendar days rather than hours. Thus, a search

warrant is valid if executed by midnight of the fifth day after its issuance, with the calculation of

days to exclude the day of issuance. We further hold that the search warrant in this case was

properly executed within the five-day period and therefore affirm the judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID H. WELLES and

JERRY L. SMITH, JJ., joined.

Kenneth Quillen, Nashville, Tennessee, for the appellant, Ronald Stanley.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General,

Victor S. Johnson, III, District Attorney General; and Derrick L. Scretchen, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

On November 23, 1998, the Davidson County Grand Jury returned a nine-count indictment

against the Defendant, Ronald Stanley, charging him with the sale of twenty-six or more grams of

cocaine; the delivery of twenty-six or more grams of cocaine; possession with intent to sell or deliver

300 grams or more of cocaine; simple possession of marijuana; felony possession of a weapon; two

counts of possession of drug paraphernalia; theft of cable services; and possession with intent to sell

or deliver between ten pounds, one ounce and seventy pounds of marijuana. In July 1999, the
1

 A transcript of the suppression hearing is not included in the record.

2

 A widely use d legal treatise in Tennesse e opines, “Presumably, the officers h ave exa ctly 120 h ours with in

which to execu te the warra nt.” Dav id Louis Raybin, Tennessee Criminal Practice and Proced ure § 18.124 n.2 (1984 ).

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Defendant filed a motion to suppress evidence upon which the indictment was based and an amended

motion to suppress the evidence; in August 1999, the Defendant filed a second amended motion to

suppress the evidence. On August 18, 1999, the trial court conducted a suppression hearing,1 and

on September 23, 1999, the trial court denied the Defendant’s motion to suppress by written order.

On March 9, 2000, the Defendant pled guilty to count one: selling over twenty-six grams of

cocaine; count three: possession with intent to sell over 300 grams of cocaine; and count eight:

possession with intent to sell between ten and seventy pounds of marijuana. He received concurrent

sentences of eighteen years in count three, eight years in count one, and three years in count eight,

to be served in the Tennessee Department of Corrections. As to count three of the indictment,

possession with intent to sell over 300 grams of cocaine, the Defendant reserved the following

certified question of law: “whether the search warrant was void for execution more than 120 hours

after issuance.” See Tenn. R. Crim. P. 37(b)(2)(i). The Defendant now appeals the certified

question of law. We conclude that the search warrant in this case was valid and therefore affirm the

Defendant’s conviction in count three of the indictment.

The Defendant and the State agree that the search warrant that is the subject of this appeal

was issued at 12:00 a.m. (midnight) on March 13, 1998 and executed at 10:00 a.m. on March 18,

1998, 130 hours after its issuance. Tennessee Code Annotated § 40-6-107 provides that “[a] search

warrant shall be executed and returned to the magistrate by whom it was issued within five (5) days

after its date, after which time, unless executed, it is void.” Tenn. Code Ann. § 40-6-107(a); see also

State v. Evans, 815 S.W.2d 503, 505-506 (Tenn. 1991). Similarly, Tennessee Rule of Criminal

Procedure 41(d) mandates that a search warrant “be executed within five days after its date.” In this

case of first impression in Tennessee, we must determine how that five-day period is to be computed.

The Defendant contends in his brief that the time for execution of a warrant should be

calculated in hours2 and thus that the five-day rule should be construed to mean that “probable cause

no longer exists 120 hours after issuance of a search warrant.” In this case, because the search

warrant issued on March 13, 1998 was executed 130 hours after its issuance, the Defendant argues

that the warrant was void at the time of its execution. The Defendant therefore contends that all

evidence seized pursuant to the March 13, 1998 search warrant should be suppressed.

Although this case presents a novel question for our consideration, we are guided by some

basic principles of law in our analysis of the issue. Generally, “[i]n matters of statutory construction

the role of this [C]ourt is to ascertain and give effect to the intent of the legislature.” State v.

Webster, 972 S.W.2d 701, 703 (Tenn. Crim. App. 1998). Moreover, the general rule for

computation of time is “that the law knows no fractions of a day.” Allen v. Effler, 235 S.W.2d 67,

68 (Tenn. 1921). Finally, we note that this Court has stated, “[T]he expression ‘within’ a certain
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time embraces the last day of the time so limited, and the last day is counted in its entirety.” State

v. Emmett Ronnie Hammonds, No. 967, 1991 WL 46629, at *1 (Tenn. Crim. App., Apr. 5, 1991,

Knoxville) (citing Union Trust Co. v. Chattanooga Elec. Ry. Co., 47 S.W. 422 (1898)).

We hold that the five-day period in which a search warrant must be executed under

Tennessee Code Annotated § 40-6-107 and Rule 41(d) of the Tennessee Rules of Criminal Procedure

is to be computed using calendar days rather than hours. Thus, a search warrant is valid if executed

by midnight of the fifth day after its issuance, with the calculation of days to exclude the day of

issuance. The first of the five days to be counted in this case was March 14, 1998, the day after the

March 13, 1998 date of issuance. Had the warrant not been executed by midnight on March 18,

1998, the warrant would have been void. However, the execution of the warrant occurred at 10:00

a.m. on March 18, 1998, and thus the warrant was lawfully executed.

This method of computation is consistent with that adopted in other jurisdictions confronted

with this issue. See, e.g., People v. Clayton, 22 Cal. Rptr. 2d 371, 374 (Cal. Ct. App. 1993); United

States v. La Monte, 455 F. Supp. 952, 957 n.6 (E.D. Pa. 1978); State v. Durand, 461 So. 2d 1090,

1093 (Ct. App. La. 1984); Gonzalez v. State, 768 S.W.2d 436, 438 (Tex. App. 1989); State v.

Anonymous, 480 A.2d 600, 603 n.5 (Conn. 1984). Furthermore, had the legislature intended that

the time for execution of a search warrant be computed in terms of hours rather than days, it could

have drafted rules or statutes reflecting a period of 120 hours rather than five days.

We conclude that a search warrant expires five days after its issuance, to be calculated in a

manner consistent with this opinion. Thus, we conclude that the search warrant in this case was

lawfully executed. We therefore AFFIRM the judgment of the trial court.

___________________________________ 

ROBERT W. WEDEMEYER, JUDGE