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State v. Henderson3/7/2001
er failed to note on the officer's return that he had left a copy of the warrant with Linda Dellinger. However, nothing in Rule 41(c) requires this; the rule only requires that a copy of the warrant be left with the person on whom it was served.
Third, Dellinger contends that the search of his property was invalid because the warrant does not indicate the time at which it was issued. However, the warrant expressly states that it was issued at 2:25 p.m. on February 28, 1992, by Judge Charles S. Sexton. This issue has no merit.
D. Compliance with Tennessee Code Annotated Section 40-6-104
Dellinger contends that the search warrant is invalid because the supporting affidavit does not comply with the requirements of Tennessee Code Annotated section 40-6-104. We disagree.
Tennessee Code Annotated section 40-6-104 states that
The magistrate, before issuing the warrant, shall examine on oath the complainant and any witness he may produce, and take their affidavits in writing, and cause them to be subscribed by the persons making them. The affidavits must set forth facts tending to establish the grounds of the application, or probable cause for believing that they exist. Tenn. Code Ann. § 40-6-104 (1990).
Dellinger contends that the affidavit supporting the warrant is invalid because it contains no indication that it was subscribed and sworn before the warrant was issued. Although the affidavit does not indicate what it time it was subscribed and sworn to, the affidavit states that it was " worn and subscribed before [Judge Charles S. Sexton] this 28 day of February, 1992." In addition, the warrant expressly states that " roof by ffidavit having been made before [Judge Charles S. Sexton] by Detective Jim Widener." This clearly indicates that the affidavit was subscribed and sworn to before the warrant was issued. This issue has no merit.
E. Execution of the Warrant in Sevier County by Officers from Blount County
Dellinger contends that even if the search warrant was valid, the search of his property in Sevier County was illegal because it was conducted by officers from Blount County. We disagree.
Detective Widener of the Blount County Sheriff's Department testified that when he executed the search warrant for Dellinger's property, he was accompanied by Captain McMahan of the Sevier County Sheriff's Department and approximately three other officers from the Sevier County Sheriff's Department. Widener also testified that he witnessed Dellinger's step-daughter, Angela Gray, give consent to search the trailer in which she resided on Dellinger's property.
Dellinger contends that because Rule 41(c) of the Tennessee Rules of Criminal Procedure requires that a search warrant be "directed to and served by the sheriff or any deputy sheriff of the county wherein issued, any constable, or any other peace officer with authority in the county," Widener had no authority as a Blount County officer to execute a warrant in Sevier County. However, in Smith,, the Tennessee Supreme Court upheld a search that was conducted in Robertson County by a Metropolitan Nashville police officer who was accompanied by an officer from the Robertson County Sheriff's Department. 868 S.W.2d at 572-73. The supreme court stated that the Metropolitan Nashville police officer's "participation in procuring the warrant and executing it d not invalidate the warrant." Id. at 573. In addition, the Tennessee Supreme Court held in State v. Pigford, 572 S.W.2d 921 (Tenn. 1978), that the issuance of a warrant to a federal officer and the participation of the federal officer in the execution of the warrant did not invalidate the warrant so
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