State v. Keith

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON

STATE OF TENNESSEE, ( FOR PUBLICATION
(
Appellee, ( Filed: September 28, 1998
(
(
v. ( Madison Circuit
(
( Hon. Whit LaFon,
DENNIS KEITH and, ( Judge
TIMOTHY COLLINS

Appellants.
(
(
(
FILED
No. 02S01-9604-CC-00035
September 28, 1998

Cecil Crowson, Jr.
Appellate C ourt Clerk
For State-Appellee: For Defendants-Appellants:

John Knox Walkup Joe H. Byrd, Jr.
Attorney General & Reporter Jackson, Tennessee

Michael E. Moore
Solicitor General

Elizabeth T. Ryan
Assistant Attorney General
Nashville, Tennessee

James G. Woodall
District Attorney General
Twenty-Sixth Judicial District
Jackson, Tennessee

Nick Nicola
Assistant District Attorney General
Jackson, Tennessee

OPINION

AFFIRMED. DROWOTA, J.
 We granted this appeal to consider two issues: 1) whether the investigative

automobile stop in this case was based upon reasonable suspicion, supported by

specific and articulable facts, that a crime was being committed; and 2) whether

the search warrant in this case is invalid because the issuing judge failed to

complete the jurat attesting that the affidavit in support of issuance of the warrant

was executed under oath by the affiant.

Upon careful consideration, we agree with the Court of Criminal Appeals

that the investigative automobile stop was based upon reasonable suspicion and

therefore constitutionally permissible. We have also determined that although it is

preferable that every affidavit contain a completed jurat, the omission of, or defect

in, the jurat does not affect the validity of a warrant issued upon probable cause

when it is proven by extrinsic evidence that the supporting affidavit was properly

sworn by the affiant. Accordingly, we affirm the judgment of the Court of Criminal

Appeals which reversed the trial court’s grant of the defendant’s motion to

suppress. The cause is remanded to the trial court for further necessary

proceedings.

FACTUAL BACKGROUND

On September 9, 1993, Investigator Danny Mullikin of the Drug Task Force

of the 26th Judicial District, received information from a confidential informant that

the defendants, Dennis Keith and Timothy Collins were storing illegal drugs in

their home located at 225 Hollywood in the City of Jackson. The informant also

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provided a physical description of the defendants. This confidential informant

previously had supplied the Task Force with reliable information which had

resulted in five separate arrests for narcotic-related offenses and the seizure of

contraband. Responding to this information, Investigator Mullikin initiated

surveillance of the residence located at 225 Hollywood, and on one occasion, he

observed a red Honda CRX vehicle parked outside the residence.

Approximately three days after receiving the information from the

confidential informant, on the evening of September 12, 1993, Investigator Mullikin

received a telephone call from an anonymous informant who also related that the

residents of the house located at 225 Hollywood were involved in the possession

and sale of illegal drugs. The informant claimed to have observed illegal drugs

inside the residence within four days of the call. The informant further claimed

that shortly before placing the call he observed marijuana in a red Honda CRX

vehicle which was parked outside the residence and saw both suspects present at

the residence. The anonymous informant supplied defendant Collins’ name as

the owner of the Honda and also provided a physical description of both

defendants which matched the descriptions previously given by the confidential

informant. Finally, the anonymous informant said the defendants worked during

the day but used the Honda to sell and deliver illegal drugs late at night.

Less than one hour after receiving the phone call from the anonymous

informant, Investigator Mullikin and another officer again set up surveillance near

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the defendants’ residence. They observed the red Honda vehicle at the

residence, and approximately five minutes after the officers arrived, two

individuals matching the physical descriptions given by both informants came out

of the residence and entered the automobile. When the vehicle left the driveway

and traveled north on Hollywood, the officers followed and stopped it

approximately one-fourth of a mile from the residence.

Defendant Collins was driving the automobile and Keith was the passenger.

After confirming that Collins owned the car, Investigator Mullikin obtained

permission from Collins to search the vehicle. During the search, the officers

discovered a small amount of marijuana and two Lorazepam tablets, a Schedule

IV controlled substance. Collins said the Lorazepam tablets had been given to

him by a female friend and admitted that he did not have a prescription for the

drugs.

The officers placed Collins and Keith under arrest and then sought a

warrant to search the residence. Investigator Mullikin provided an affidavit in

support of issuance of the search warrant, and in it he recounted the fact that

illegal drugs had been found in the defendants’ vehicle during the investigative

stop. A search warrant was issued by Walter Drake, Municipal Court Judge of the

City of Jackson. The officers executed the search warrant and seized from the

residence several pounds of marijuana, marijuana seed, Xanax, LSD, several

other pills, and drug paraphernalia.

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 As a result of the search, the defendants were charged by indictment with

possession of marijuana with intent to sell or deliver, possession of Schedule IV

controlled substances with intent to sell or deliver, and possession of drug

paraphernalia. The defendants moved to suppress the evidence seized during the

search of the Honda automobile and during the search of their residence. They

argued that their constitutional rights under Article I, Section 7 of the Tennessee

Constitution and the Fourth Amendment to the United States Constitution had

been violated because the officers lacked reasonable suspicion to initiate the

investigative stop of their automobile. The defendants also argued that the

evidence seized during the search of their residence should be suppressed as

“fruit of the poisonous tree” because a portion of the information contained in the

affidavit supporting issuance of the search warrant was derived from the illegal

investigative stop.

Following a hearing, the trial judge found the investigative stop of the

defendants’ automobile constitutionally invalid and, therefore, granted the motions

to suppress the evidence seized during the search of the vehicle and during the

search of the defendants’ residence. The State sought and obtained an

interlocutory appeal from the trial court’s decision. Finding that the evidence in the

record preponderated against the trial court’s conclusion that the anonymous tip

was not sufficiently reliable to establish reasonable suscipion to support the

investigative stop of the defendants’ vehicle, the Court of Criminal Appeals

reversed the judgment of the trial court and remanded for further proceedings.

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Thereafter, the defendants filed a joint application for permission to appeal in this

Court, arguing first that the Court of Criminal Appeals erred in concluding that the

evidence preponderated against the trial court’s decision, and second, that the

search of the defendants’ residence was constitutionally invalid because the

affidavit supporting issuance of the search warrant does not contain a written

certificate of the issuing judge attesting that the affidavit had been sworn. We

granted the defendants’ application for permission to appeal and, for the reasons,

hereafter explained, now affirm the judgment of the Court of Criminal Appeals.

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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We afford to the party

prevailing in the trial court the strongest legitimate view of the evidence and all

reasonable and legitimate inferences that may be drawn from that evidence. The

findings of a trial court in a suppression hearing will be upheld unless the evidence

preponderates against those findings. Id. The application of the law to the facts

found by the trial court, however, is a question of law which this Court reviews de

novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

REASONABLE SUSPICION

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 In this Court, the defendants initially contend that the investigative

automobile stop was unconstitutional because the anonymous informant’s tip did

not demonstrate the informant’s veracity or basis of knowledge as required by this

Court’s decisions in State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989) and State v.

Pulley, 863 S.W .2d 29 (Tenn. 1993). The State responds that the investigative

stop in this case was constitutionally permissible, considering the totality of the

circumstances, including the information which previously had been provided by

the confidential informant and the independent police corroboration, because the

law enforcement officers had reasonable suspicion, supported by specific and

articulable facts, to believe that the defendants were committing a crime.

Both the Fourth Amendment 1 to the United States Constitution and Article

I, Section 72 of the Constitution of Tennessee prohibit unreasonable searches and

seizures and direct that search warrants be issued upon probable cause. These

constitutional provisions are designed to “safeguard the privacy and security of

individuals against arbitrary invasions of government officials.” Camara v.

Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967);

1
The F ourth Am endm ent is app licable to the s tates throu gh the F ourteen th Am endm ent.
Map p v. O hio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961). The text of the
Fourth Amendment is as follows: “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and no
warr ants shall is sue , but u pon prob able c aus e, su ppo rted b y oath or aff irm ation , and partic ularly
describ ing the plac e to be se arched , and the p ersons or things to be seized .”

2
Article I, Section 7 provides “that the people shall be secure in their persons, houses,
papers and possessions, from unreasonable searches and seizures; and that general warrants,
whereby an officer may be commanded to search suspected places, without evidence of the fact
com mitte d, or to seize any pe rson or pe rson s not nam ed, w hos e off enc es ar e not partic ularly
describ ed and suppo rted by evide nce, are dange rous to liber ty and oug ht not to be granted .”

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see also State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997); Sneed v. State,

221 Tenn. 6, 13, 423 S.W.2d 857, 860 (1968).

Accordingly, under both the federal and state constitutions, warrantless

searches and seizures such as the investigative automobile stop which occurred

in this case are presumed to be unreasonable. Evidence discovered as a result

thereof is subject to suppression unless the prosecution demonstrates by a

preponderance of the evidence that the search or seizure was conducted

pursuant to an exception to the warrant requirement. Whren v. United States, 517

U.S. 806, 116 S. Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); Delaware v. Prouse, 440

U.S. 648, 654, 99 S. Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); Coolidge v. New

Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971);

Yeargan, 958 S.W.2d at 630; State v. Watkins, 827 S.W.2d 293, 295 (Tenn.

1992).

One such exception was announced in the landmark case of Terry v. Ohio,

392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), in which the United

States Supreme Court held that a law enforcement officer may temporarily seize a

citizen if the officer has a reasonable suspicion, based upon specific and

articulable facts, that a criminal offense has been, is being, or is about to be

committed. An investigative stop of an automobile is also constitutional if law

enforcement officials have a reasonable suspicion, supported by specific and

articulable facts, that the occupants of the vehicle have committed, are

committing, or are about to commit a criminal offense. United States v. Cortez,

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449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981); Prouse, 440 U.S.

at 663, 99 S.Ct. at 1401; Yeargan, 958 S.W.2d at 631; Watkins, 827 S.W.2d 294.

Moreover, the facts forming the basis of an officer’s reasonable suspicion need

not rest upon the personal knowledge or observation of the officer. Indeed, in

Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612

(1972), the United States Supreme Court rejected the argument “that reasonable

cause for a stop and frisk can only be based on the officer’s personal

observation”3 and sustained a Terry investigative stop and frisk undertaken on the

basis of a tip given to the officer by a known informant who had provided reliable

information in the past. Id. 407 U.S. at 147, 92 S.Ct. at 1924.4

This Court also has upheld the constitutionality of investigative stops of

motor vehicles based upon reasonable suspicion, and we have approved such

stops even though the specific and articuable facts establishing the reasonable

suspicion were derived from anonymous tips. Simpson, 968 S.W.2d 776, 781

(Tenn. 1998); Pulley, 863 S.W.2d at 29. However, when law enforcement officials

initiate an investigative stop as a result of information provided by an anonymous

informant, Tennessee law requires some showing of both the informant’s veracity

or credibility and his or her basis of knowledge. Id.; compare Jacumin, 778

S.W.2d at 436 (discussing the showing required when an anonymous informant’s

tip is relied upon to establish probable cause for issuance of a warrant). While

3
Id., 407 U.S. at 146, 92 S.Ct. at 1923.

4
At the time of the decision in A da m s, the two-pronged veracity and basis of knowledge test
was the standard employed by federal courts to analyze the reliability of an informant’s tip. The
federa l courts did not adop t the “totality of the c ircum stance s” test un til 1983. See Illinois v. Gates,
462 U .S. 213, 10 2 S.Ct. 23 17, 76 L.E d.2d 527 (1983).

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independent police corroboration may be relied upon to make up deficiencies,

“each prong represents an independently important consideration that must be

separately considered and satisfied in some way.” Simpson, 968 S.W.2d at 781;

Pulley, 863 S.W.2d at 31.

We have recognized, however, that

[r]easonable suspicion is a less demanding standard than probable
cause not only in the sense that reasonable suspicion can be
established with information that is different in quantity or content
than that required to establish probable cause, but also in the sense
that reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.

Pulley, 863 S.W.2d at 32, quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct.

2412, 2416, 110 L.Ed.2d 301 (1990) (emphasis added). As a result, the two-

pronged test of reliability is not as strictly applied if the anonymous informant’s tip

is being used to establish reasonable suspicion for an investigative stop rather

than probable cause for a search or seizure. Simpson, 968 S.W.2d at 782. In

evaluating the reliability of an anonymous informant’s tip, the circumstances under

which a tip is given are important and may sufficiently relate the informant’s basis

of knowledge, even in the absence of an explicit statement by the informant. Id.

For example, if an informant reports an incident at or near the time of its

occurrence, “a court can often assume that the report is first-hand, and hence

reliable.” Id. In addition, if a tip is contemporaneously corroborated by police, it is

reasonable to infer eyewitness reliability of the informant. Id. Police corroboration

of several aspects of an informant’s report may also satisfy unknowns about an

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informant’s credibility. Id. Establishing that an anonymous informant’s data is

reliable may also satisfy the credibility prong. State v. Ballard, 836 S.W.2d 560,

562 (Tenn. 1992).

Considering the information provided by the anonymous informant in this

case in light of these well-settled principles of law, we conclude that the proof in

this record preponderates against the trial court’s finding that the veracity and

reliability of the tip were not sufficiently established. The anonymous informant

provided law enforcement officials with the name of one of the defendants, a

physical description of both defendants, a description of the vehicle which they

allegedly were using in drug transactions, a description of their schedule, and the

location of the defendants’ residence in which illegal drugs were being stored. In

addition, the anonymous informant told officers that the two suspects and the

vehicle were then present at the house located at 225 Hollywood. Finally, the

anonymous informant claimed to have observed marijuana inside the vehicle

shortly before placing the call and also claimed to have observed illegal drugs

inside the house within the previous four days.

Some of the information provided by the anonymous informant was

immediately corroborated by the information previously provided by the

confidential informant, including the location of the residence, the physical

description of the defendants, and the presence of illegal drugs inside the

residence within the previous days. In addition, the officers themselves previously

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had observed at 225 Hollywood a vehicle matching the description given by the

anonymous informant.

Other details were corroborated when the officers arrived at the scene

within an hour of the tip. For example, as claimed by the informant, both the

vehicle and two individuals matching the descriptions given by both of the

informants were present at the residence when police arrived. In addition, police

observed the suspects leave the house in the Honda late in the evening, which

was behavior consistent with the pattern of operation described by the anonymous

informant. As previously stated, if a tip is contemporaneously corroborated by

police, it is reasonable to infer the first-hand, eyewitness reliability of the

informant. In our view, the circumstances under which the tip was given, and the

police corroboration of several key aspects of the tip sufficiently satisfy the two-

pronged test of reliability.

As the United States Supreme Court recently has recognized,

[a]rticulating precisely what ‘reasonable suspicion’ and ‘probable
cause’ mean is not possible. They are common sense, nontechnical
conceptions that deal with the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act.

Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1661, 134 L.Ed.2d

911 (1996). In evaluating whether a police officer has a reasonable suspicion,

supported by specific and articulable facts, a court must consider the totality of the

circumstances. Yeargan, 958 S.W.2d at 632; Watkins, 827 S.W.2d at 294; Cortez,

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449 U.S. at 417, 101 S.Ct. at 695. Circumstances relevant to the evaluation

include, but are not limited to, the officer’s personal objective observations,

information obtained from other police officers or agencies, information obtained

from citizens, and the pattern of operation of certain offenders. A court must also

consider the rational inferences and deductions that a trained officer may draw

from the facts and circumstances known to him--inferences and deductions that

might well elude an untrained person. Yeargan, 958 S.W.2d at 632; Watkins, 827

S.W.2d at 294; Cortez, 449 U.S. at 418, 101 S.Ct. at 695; Terry, 392 U.S. at 21,

88 S.Ct. at 1880. Finally, the content, quality, and quantity of information

possessed by police must be assessed in determining whether it is sufficiently

reliable to support a finding of reasonable suspicion. Id.

The officer, of course, must be able to articulate something more
than an inchoate and unparticularized suspicion or hunch. The
Fourth Amendment requires some minimal level of objective
justification for making the stop. That level of suspicion is
considerably less than proof of wrongdoing by a preponderance of
the evidence.

Sokolow, 490 U.S. at 7-8, 109 S.Ct. at 1585 (internal citations and quotations

omitted); see also Yeargan, 958 S.W.2d at 632.

Considering the totality of the circumstances in this case, including the

personal observations of the officers, the information provided by the confidential

informant, and the information provided by the anonymous informant, we conclude

that the evidence preponderates against the trial court’s finding and instead

demonstrates that the officers had a reasonable suspicion, supported by specific

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and articulable facts, that the defendants were committing or about to commit a

criminal offense.

VALIDITY OF AFFIDAVIT SUPPORTING SEARCH WARRANT

Having determined that the investigative automobile stop was

constitutionally valid, we must next consider the defendants’ contention that the

evidence seized from the residence pursuant to the warrant should be suppressed

because the judge failed to sign the jurat attesting that the affidavit was executed

under oath. This is an issue of first impression in Tennessee.

A brief summary of the relevant facts is necessary to place this issue in

context. Since the trial court in this case suppressed the evidence seized

pursuant to the warrant as “fruit of the poisonous tree” upon finding the initial

investigative stop invalid, the defendants did not seek to have the warrant itself

declared invalid in the trial court. While the defendants mentioned the issue in

their brief to the Court of Criminal Appeals, they did not diligently pursue this issue

until they filed their joint application for permission to appeal in this Court. In that

application the defendants argued both that the Court of Criminal Appeals erred in

reversing the trial court’s judgment with respect to the investigative stop, and also

that the evidence seized pursuant to the warrant should be suppressed because

the affidavit supporting issuance of the warrant had not been signed by

Investigator Mullikin, the affiant, and also because Judge Drake had failed to

complete the portion of the affidavit known as the jurat, which is the written

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certificate of the issuing judge attesting that the affiant submitted the affidavit

under oath.5

This Court granted the defendants permission to appeal. Thereafter, the

State moved to supplement the record, stating that the unsigned copy of the

affidavit contained in the record on appeal actually was not the affidavit upon

which Judge Drake had based his determination of probable cause. The

defendants filed a response in opposition to the State’s motion. This Court

remanded the matter to the trial judge to determine whether the record should be

supplemented pursuant to Rule 24(e), 6 Tenn. R. App. P.

Following a hearing, the trial court permitted the State to supplement the

record with the affidavit which actually had been presented to Judge Drake and

upon which he had based his determination of probable cause. Though the

affidavit submitted in support of the warrant contained the signature of the affiant,

Investigator Milliken; the jurat attesting that the affidavit had been given under

oath was incomplete. However, the trial court permitted the State to also

supplement the appellate record with affidavits from Judge Drake and Investigator

Mullikin stating that the affidavit had been sworn by Investigator Mullikin before

5
See D.T. McCall & Sons v. Seagraves, 796 S.W.2d 457, 464 (Tenn. App. 1990) (defining
“jurat” and citing case s); see also State v. Colon, 644 A.2d 877, 879 (Conn . 1994).

6
Subsection (e) provides that “[i]f any matter properly includable is omitted from the record,
is improperly included, or is misstated therein, the record may be corrected o r modified to conform
to the truth. Any differences regarding whether the record accurately discloses what occurred in the
trial court shall be submitted to and settled by the trial court regardless of whether the record has
been transmitted to the appellate court. Absent extraordinary circumstances, the determination of
the trial court is conclusive. If necessary, the appellate or trial court may direct that a suppllemental
record be certified and transmitted.” See also Bradshaw v. Daniel, 854 S.W.2d 865, 868-69 (Tenn.
1993).

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issuance of the warrant even though Judge Drake failed to complete the jurat.

The supplemental record was then transmitted to the Clerk of this Court.

In this Court, the defendants argue that an affidavit supporting issuance of

a search warrant must contain a jurat completed by the issuing judge attesting that

the affidavit was executed under oath. According to the defendants, extrinsic

evidence is not a permissible means to prove that an affidavit was properly sworn.

Because the affidavit in this case did not contain a completed jurat on its face, the

defendants contend that the search warrant issued in reliance upon the affidavit is

invalid and evidence seized pursuant to the warrant should be suppressed.

While conceding that a jurat is the preferred means of establishing that an

affidavit was executed under oath, the State argues that it is not the only

permissible means of satisying the oath requirement. According to the State, an

incomplete or defective jurat does not vitiate the validity of a warrant when it is

proven by extrinsic evidence that the supporting affidavit was properly sworn by

the affiant. The State asserts that the warrant in this case is valid, despite the

incomplete jurat, because the affidavits of Investigator Mullikin and Judge Drake

establish that the supporting affidavit was properly sworn.

We begin our analysis of this issue by reiterating that under both the

federal and state constitutions no warrant is to be issued except upon probable

cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983);

State v. Jacumin, supra; Tenn. Code Ann. § 40-6-103 (1997 Repl.). The Fourth

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Amendment to the United States Constitution explicitly mandates that search

warrants issue only “upon probable cause, supported by Oath or affirmation.”

Though, Article I, Section 7 of the Tennessee Constitution does not require an

oath or affirmation, it precludes issuance of warrants except upon “evidence of the

fact committed.” Moreover, the General Assembly has expressly directed that a

search warrant may be issued only upon a written and sworn affidavit which

contains allegations establishing probable cause. Tenn. Code Ann. § 40-6-1037

and -1048 (1997 Repl.); Tenn. R. Crim. P. 41(c);9 Jacumin, 778 S.W.2d 432.

Likewise, this Court previously has recognized that a written and sworn affidavit

containing allegations from which the magistrate can determine whether probable

cause exists is an indispensable prerequisite to the issuance of a search warrant

in this State. Id.; see also State ex rel. Blackburn v. Fox, 200 Tenn. 227, 230, 292

S.W.2d 21, 23 (Tenn. 1956).

The law in this State is clear that a written and sworn affidavit is an

essential prerequisite to the issuance of a valid search warrant. However, we

have found no constitutional or statutory rule stating that an indispensable

prerequisite to a valid affidavit is a jurat -- a written certificate of the issuing judge

7
Pursuant to that statute “[a] search warrant can only be issued on probable cause,
sup porte d by af fidav it, nam ing or desc ribing the p erso n, an d par ticula rly des cribin g the prop erty,
and the place to be searched .” (Emphasis adde d.)

8
Tha t statu tory pr ovisio n spe cifies that “[ t]he m agis trate , befo re iss uing t he w arra nt, sh all
exa min e on o ath th e com plaina nt an d any w itnes s the com plaina nt m ay pro duc e, an d tak e the ir
affidavits in w riting, and ca use the m to b e subs cribed by the person s ma king the m. T he affida vits
must set forth facts tending to establish the grounds of the application or probable cause for
believing tha t they exist.”

9
In pertinent part the Rule specifies that “[a] warrant shall issue only on an affidavit or
affidavits s worn to b efore the mag istrate and establishin g the gro unds o f issuing th e warra nt.”

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attesting that the affiant executed the affidavit under oath. An affidavit generally

has been defined in case law as “a statement in writing, signed, and made upon

oath before an authorized magistrate.” Watts v. Carnes, 51 Tenn. 532, 534

(1871). Certainly nothing in that definition suggests that a jurat is an essential

component of an affidavit. Moreover, Tennessee decisions addressing issues

similar to the one raised by this appeal lend support to the proposition that a jurat

is not an essential prerequisite to a valid affidavit so long as proof is offered to

establish that the affidavit was properly sworn.

For example, in Wiley v. Bennett, 68 Tenn. 581 (1877), this Court

considered whether an attachment was rendered invalid because the issuing clerk

failed to attest that the supporting affidavit had been sworn. The Court first noted

that “the affidavit was signed, and purports to have been sworn to on its face.” Id.

at 582. Next, the Court observed that the clerk had testified that the affidavit “was

duly sworn to before issuance (of the attachment), but by oversight the attestation

of the fact was omitted.” Id. Finally, in rejecting the challenge, this Court

emphasized that “[t]he fact that it was sworn to is the substantial matter, and the

omission of the clerk to do his duty by attesting it, cannot be allowed to prejudice

the party.” Id. This principle was reaffirmed five years later in Agricultural

Association v. Madison, 77 Tenn. 407, 409 (1882) (“When the affidavit was

actually sworn to and the clerk fails to attest it, it is not fatal. . . .”). Though these

decisions do not address an affidavit that is given in support of a search warrant,

they are persuasive authority for the proposition that a defective or incomplete

jurat does not invalidate an affidavit when it is established by other proof that the

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affidavit was properly sworn.10

Moreover, we observe that a majority of other state courts considering

whether a search warrant is void if based upon an affidavit which contains an

incomplete or defective jurat have concluded that a jurat is not an essential

element of an affidavit but is simply evidence of the fact that the affidavit was duly

sworn by the affiant. In the face of an incomplete or defective jurat, these state

courts allow extrinsic evidence to prove that the affidavit was properly sworn.

State v. Colon, 644 A.2d 877 (Conn. 1994); Bigler v. State, 602 N.E.2d 509 (Ind.

App. 1992); State v. Journey, 562 P.2d 138 (Kan. App. 1977); Powell v. State, 355

So.2d 1378 (Miss. 1978); People v. Rodriguez, 541 N.Y.S.2d 491 (N.Y.App. Div.

1989); People v. Zimmer, 490 N.Y.S.2d 912 (N.Y. App. Div. 1985); State v. Flynn,

235 S.E.2d 424 (N.C. App. 1977); White v. Oklahoma, 702 P.2d 1058 (Okla. Crim.

App. 1985); State v. Nunn, 783 P.2d 26 (Or. App. 1989); Huff v. Commonwealth,

194 S.E.2d 690 (Va. 1973); see also Land Clearance for Redevelopment Authority

v. Zitko, 386 S.W.2d 69 (Mo. 1965) (omission of jurat will not render properly

executed affidavit a nullity); 3 Am.Jur.2d 478 Affidavits §17 (1986); 2A C.J.S. 467

Affidavits § 31 (1972) (“The jurat is not such a part of an affidavit that its omission

will render the affidavit a nullity, at least where the affidavit is otherwise properly

executed. Thus, ordinarily a jurat is not essential to an affidavit if the fact of the

10
In Harve y v. State, 166 Tenn. 227, 60 S.W.2d 420 (1933) and in W att, supra, the
affid avits w ere n ot sw orn n or sig ned until af ter the warr ant o r attac hm ent h ad iss ued . Acc ordin gly,
in those cases, this Court held that the magistrate had no authority to issue the warrant or
attac hm ent b eca use no af fidav it had supp orted its iss uan ce. T his C ourt r efus ed to perm it extrin sic
proof to contradict the express terms of the affidavit and retroactively confer authority upon the
issuing judge. In this appeal, there is no attempt to offer extrinsic proof to contradict the express
terms of the affid avit which re cites on its fa ce that it was being give n unde r oath.

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due administration of the oath is otherwise shown.”) 11 The majority rule is

consistent with prior Tennessee case law on the subject, and it is sound as a

matter of policy and practice.

Tennessee law is clear that in determining whether or not probable cause

supported issuance of a search warrant only the information contained within the

four corners of the affidavit may be considered. Jacumin, 778 S.W.2d at 432.

However, we are not confined to the four corners of the affidavit in determining

whether it has been properly sworn. Accordingly, we conclude that although it is

preferable that every affidavit contain a completed jurat, an incomplete or

defective jurat does not invalidate a warrant issued upon probable cause if it is

proven by extrinsic evidence that the supporting affidavit was properly sworn by

the affiant. Any other conclusion would impose an undue penalty upon law

enforcement for an inadvertent omission on the part of the issuing judge. Colon,

644 A.2d at 883.

Applying that rule to the record in this appeal, we reject the defendants’

claim that the search warrant is invalid. The proof establishes that the affidavit

was given under oath. First of all, the affidavit recites on its face that it was being

given under oath. Investigator Milliken signed the affidavit. The search warrant in

11
The following jurisdictions have held the omission of a jurat to be fatal to the validity of an
affidavit. We note that in these jurisdictions, either the state constitution or a statutory provision
explicitly required that an affidavit contain the signature of the officer administering the oath.
Comm onwealth v. Dozier, 366 N.E .2d 1270 (Mass . App. 197 7); Comm onwealth v. McAfee, 326
A.2d 52 2 (Penn . 1974); Elam v. Yale Clinic , 783 S.W.2d 638, (Tex. App. 1989). Though none
involve an affidavit given in support of a search warrant, the following state courts have held, in the
absen ce of a s tatutory prov ision, that a va lid affidavit requ ires a com pleted jura t. Ex Parte Finance
America Corp., 507 So .2d 458 ( Ala. 1987 ); Phoebe Putney Mem. Hosp. v. Skipper, 487 S.E.2d 1
(Ga. Ap p. 1997) ; Hough v. Weber, 560 N.E .2d 5 (Ill. App. 1 990).

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the record recites that it was based upon an affidavit given by Investigator Milliken.

Judge Drake signed the search warrant. Finally, the record contains affidavits

from both Investigator Milliken and Judge Drake stating that the affidavit was given

under oath. Accordingly, despite the incomplete jurat, the other evidence in this

record establishes that the affidavit was properly sworn.

CONCLUSION

For the reasons previously stated, we conclude that the investigative stop in

this case was based upon reasonable suspicion and therefore constitutionally

permissible. We also conclude that the search warrant issued upon a written and

sworn affidavit. Accordingly, we affirm the judgment of the Court of Criminal

Appeals which reversed the trial court’s grant of the defendants’ motion to

suppress. This cause is remanded to the trial court for further necessary

proceedings.

______________________________
FRANK F. DROWOTA, III,
JUSTICE

Concur:
Anderson, C.J.,
Holder, J.

Birch, J. - See Separate Dissenting Opinion.

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