### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE January 18, 2001 S ession 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 gra ms of cocaine, possession with intent to sell over 300 grams of cocaine, and possession wi th intent to sell between ten and seventy pounds of marijuana. As to his conviction f or possession with in

tent t o 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 com put ed u sin g cal end ar da ys rather than hours. Thus, a search warrant is valid if executed by midnight of the fifth day afte r its issuance, with the calculation of days to exclude the day

of iss uance. We further hold that the search warrant in this case was properly executed within the five-day pe riod and therefore affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed R OBERT W. W EDEMEYER , J., delive red the opinion of the court, in which D AVID H. W ELLES and J ERRY L. S MITH , JJ., joined. Ken net h Qu ill en, Nas hvi lle , Te nne sse e, fo r th e app ell ant , Ro nal d St anl ey. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ry an, Assistant

Attorney Ge

neral, Victor S. Johnson, III, District Attorney General; and Derrick L. Scretchen, Assistant District Attorney General, for the appellee, State of Tennesse e.

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 gr ams of cocaine; possess

ion 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 paraph ernalia; theft of

cable services ; and possession with intent to sell or deliver between ten pounds, one ounce and sevent y pounds of marijuana. In July 1999, the1 A transcri pt of the s

uppression he

aring is not incl uded in the r

ecord. 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 ). -2- Defendant

filed a motion to suppress evidence u pon which the indictment was based and an amended motion to suppress

the evidence; in August 1999, the Defendant filed a second amended m

otion to suppressthe evidence. On August 18, 1999, the trial court condu cted a suppr ession hear ing, 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 ei ght: possession withintent to sell between ten and seventy pounds of marijuana. He received concur rent sentences of

eighteen years in count three, eight y ears in count one, and three y ears in count eig

ht, to be served in th

e Tennessee De

partment of Corre

ctions. As to count th

ree of the indict

ment, possession with intent to sell over 3 00 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.” SeeTenn. R. Crim. P. 37(b)(2)(i). The Defendant now appea ls the cert ified question of law. We conclude that the search warrant in this case was valid and therefore affirm the Defendant’s co

nviction in count thr

ee of the indictme

nt. 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 t he m agis tra te b y who m it was iss ued wit hin fiv e (5) days after its date, after whic

h time, unless execu

ted, it is void.” Ten

n. Code Ann. § 40-6- 107(a); see also Stat e v. Evans , 815 S.W.2d 503, 505-506 (Tenn. 1991). Similarly, Tennessee Rule of Criminal Procedure41(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 conte

nds in his brief

that the time for execution of a warrant should be calculated

in hours 2 and thus that the five-day rule should be construed to mean

that “probable c

ause no longer exists 1 20 hours after issuance of a search warrant.” In this case, bec ause the search warrant issued on March 13, 1998 was executed 130hours after its issuance, the Defendant argues that the warrant was

void at the time of it

s execution. The De

fendant theref

ore contends tha

t all evidence seized pursuant to the March 13, 1998 search warrant should be suppressed. Although this cas

e presents a novelquestion for our c onsideration, we

are guided by

some basicprinciples 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 effe ctto 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 Co urt has stated, “[T

]he expression ‘with

in’ a certain-3-

timeembraces 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, Knoxvill e) (citing Union Trust Co. v. Chattanooga Elec. Ry. Co. , 47 S.W. 422 (1898)). We hold that the five-

day period

in which a searc

h warrant must b

e executed under TennesseeCode Annotated § 40 -6-107 and Rule 41 (d) of the Tenne ssee Rules of Cr

iminal Pr ocedure is to be computed using calendar day s rather than hour

s. Thus, a search warrant is valid if executed by midnight of the fif

th day afte

r its is suance, with the calculation of days to exclude the day of issuance. The fir st o f th e fi ve d ays to be counted in this case was March 14, 1998, the day after the March13, 1998 date of issuance. Had the warrant not be en e xecuted 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 computat

ion is consistent with

that adoptedin other jurisdictions confronted withthis issue. See , e.g. , People v. Clayton , 22 Cal. Rptr. 2d 371, 374 (Cal. Ct. Ap p. 1993); United States v. La Mon

te , 455 F. Supp. 952, 957 n.6 (E.D. Pa. 1978); State v. Durand , 461 So. 2d 1090, 1093 (Ct. App. La. 1 984); 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 o

f a search war

rant be computed i

n terms of hours ra

ther than day

s, it could have drafted ru

les or statutes re

flecting a per

iod of 120 hours ra

ther than five da

ys. We conclude that a search warrant expires five days af ter its issuance, to

be calculated in a manner consistent with this opinion. Thus, we conclude that the search warrant in this cas e was lawfully exe

cuted. We theref

ore AFFIRM

the judgment of th

e trial court.

___________________________________ ROBERT W. WEDEMEYER, JUDGE