IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1997 SESSION
FILED
STATE OF TENNESSEE, * C.C.A. # 02C01-9603-CR-00083
Appellee, * SHELBY COUNTY
September 10, 1997
VS. * Hon. James C. Beasley, Jr., Judge
CLEOPHES CARTER, * (Certified Question of Law)
Cecil Crowson, Jr.
Appellant. *
Appellate C ourt Clerk
For Appellant: For Appellee:
Cleophes Carter (Pro Se) Charles W. Burson
201 Poplar Avenue, 5-E Attorney General & Reporter
Memphis, TN 38103
(on appeal) Ellen H. Pollack
Assistant Attorney General
William Nowlin, Attorney 450 James Robertson Parkway
100 North Mid America Mall Nashville, TN 37243-0493
Memphis, TN 38103
(at trial) Janet Shipman
Assistant District Attorney General
Shelby County District Attorney
General's Office
201 Poplar Avenue, Third Floor
Memphis, TN 38103
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Cleophes Carter, was indicted on two charges of
unlawful possession of a controlled substance with the intent to sell and deliver.
When a defense motion to suppress evidence was overruled by the trial court, the
defendant, who had been apprised of his right to reserve a dispositive issue for
appeal, entered a plea of guilt to the unlawful possession of marijuana with the
intent to sell, a Class E felony, and the unlawful possession of cocaine less than
one-half gram, a Class C felony. The trial court imposed sentences of one year and
four years respectively.
The single issue presented for review is whether a search warrant for
the residence of the defendant had been validly issued.1 We find no error and affirm
the judgment of the trial court.
On March 23, 1994, and based upon information provided by
Detective Paul Harvey, a search warrant was issued for the residence and the
outbuildings at 1709 Kendall in Memphis. The occupant was described as black
male known as Cleo, six feet, approximately 190 pounds, four gold front teeth, and
about twenty-four years of age. The affidavit provided as follows:
On March 22, 1994, the affiant talked with a reliable
informant of the Memphis, Shelby County, Tennessee,
who has given the affiant information regarding illegal
activities in connection with narcotics trafficking by the
above named person, which has been found to be true
and correct and which has resulted in one narcotics
seizure of marijuana. This reliable informant stated that
within the past five days of March 22, 1994, this reliable
informant had been in the above described residence
and had seen the above named person storing and
1
The single issue addressed in this opinion does not appear to have been properly reserved
under the guidelines set out in State v. Preston, 759 S.W .2d 647 (T enn. 1988) and re -esta blished in
State v. Pendergrass, 937 S.W .2d 834 (Tenn. 1996); however, the issue was not addressed in either
brief. T hus , we have add ressed the m erits. C.f., Bo wlin, 871 S.W .2d 170 (T enn . Crim . App . 1993).
2
selling marijuana in the above described residence.
At the suppression hearing it developed that Officer Harvey had not
previously used the informant for a search warrant and had based his opinion of
reliability on the fact that he had monitored the purchase of marijuana by the
confidential informant from the defendant on the day before the search warrant was
issued; the marijuana was, of course, thereupon seized. The record establishes
that the purchase did not result in an arrest of the defendant. The search of the
property pursuant to the warrant yielded two pounds of marijuana and a small
amount of cocaine.
The defendant argued that the search warrant failed to establish the
credibility of the confidential informant or the reliability of his information. The trial
court denied the motion to suppress:
[T]he court has determined that the affidavit in this matter
sufficiently sets out information that a magistrate could
rely upon in finding probable cause--namely, that the
informant had previously given information resulting in a
seizure of marijuana involving the named party in the
warrant. A more proper wording might have been a
purchase of marijuana from that individual. However, the
information he had given in the past was therefore
proven to be true. His veracity was proven and his
means of knowledge was also proven by his own
observation. Both prongs of the ... test as set out in
State v. Jacumin, 778 S.W.2d 430 were met.
In this pro se appeal, the defendant is limited to any question properly addressed
under Rule 37(b)(2)(i) or (iv), Tenn. R. Crim. P., explicitly reserving "with the consent
of the court the right to appeal a certified question of law that is dispositive of the
case."2
2
In this pro se appeal, the defendant cites three issues: (1) whether the trial court erred by not
granting the suppression hearing; (2) whether the state erred in not producing the confidential
informant; and (3) whether the judge abused his discretion by relying on information not placed in the
affida vit of co m plaint.
3
Obviously, an affidavit is an indispensable prerequisite to the issuance
of any search warrant. Tenn. Code Ann. § 40-6-103; State ex rel. Blackburn v. Fox,
200 Tenn. 227, 230, 292 S.W.2d 21, 23 (1956). It must establish probable cause.
Tenn. Code Ann. § 40-6-104; Tenn. R. Crim. P. 41(c). Probable cause has been
generally defined as a reasonable ground for suspicion, supported by circumstances
indicative of an illegal act. See Lea v. State, 181 Tenn. 378, 380-81, 181 S.W.2d
351, 352 (1944).
Also, fundamental to the issuance of a search warrant is the
requirement that the issuing magistrate make an independent determination that
probable cause exists. See State v. Moon, 841 S.W.2d 336, 337 (Tenn. Crim. App.
1992). Because the magistrate must make an independent determination, it is
imperative that the affidavit contain more than conclusory allegations. "’Recital of
some of the underlying circumstances in the affidavit is essential if the magistrate is
to perform his detached function and not serve merely as a rubber stamp for the
police.’" State v. Moon, 841 S.W.2d at 338 (quoting United States v. Ventresca, 380
U.S. 102, 108-09 (1965)).
The defendant primarily argues that the affidavit fails to establish the
informant's reliability. The general rule is that if the information in the affidavit is
supplied by a confidential informant, the adequacy of the affidavit is measured by a
two-pronged test:
(1) whether the affidavit contains the basis of the
informant's knowledge (the "basis of knowledge prong");
and
(2) whether the affidavit includes a factual allegation that
the informant is credible or the information is reliable (the
"veracity prong").
State v. Jacumin, 778 S.W.2d 430, 432, 436 (Tenn. 1989)(relying upon Aguilar v.
4
Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969)).
The basis of knowledge prong of this test is not at issue. Our attention is, therefore,
directed to the second prong.
In Aguilar, the United States Supreme Court held that a search warrant
was improvidently issued by the magistrate because the affidavit did not contain any
underlying circumstances indicative of illegal activity or any facts disclosing the
credibility of the informant or the reliability of the information given. 378 U.S. at 114.
Although the United States Supreme Court no longer employs the Aguilar-Spinelli
test, the Tennessee Supreme Court has determined that the test, "if not applied
hypertechnically, provide[s] a more appropriate structure for probable cause
inquiries incident to the issuance of a search warrant ... [and] is more in keeping with
the specific requirement of Article I, Section 7 of the Tennessee Constitution ...."
State v. Jacumin, 778 S.W.2d at 436.
A conclusory allegation of the informant's reliability is insufficient to
satisfy the veracity prong. Spinelli v. United States, 393 U.S. at 416. "It disallows
any evaluation by the magistrate and requires that the magistrate accept the
affiant's conclusions not only that the prior information was credible but also that it
was relevant and indicative of reliability. By its nature, such an allegation voids the
magisterial function." State v. Stephen Udzinski, Jr., No. 01C01-9212-CC-00380,
slip op. at 8 (Tenn. Crim. App., at Nashville, Nov. 18, 1993). Thus, the affidavit must
include the specific underlying circumstances which establish the reliability of the
confidential informant.
In State v. Moon, this court found an affidavit to be inadequate when
the informant, who claimed to have seen marijuana on the premises to be searched,
5
was described only as a "reliable" person who "‘has given information against his
penal [interest] and ... has given information that affiant has checked and found to
be correct.’" 841 S.W.2d at 339. Similarly, in the consolidated case of State v.
Landon Gaw & State v. Ronald Wayne Nail, No. 01C01-9410-CC-00351, slip op. at
6-7 (Tenn. Crim. App., at Nashville, Oct. 26, 1995), this court held an affidavit which
merely stated that the "informant has provided accurate and reliable information in
the past to Officer Winfree" failed to establish the veracity of the informant. This
court observed that there was nothing more than a conclusory allegation of the
informant's veracity: "confidential and reliable informant who has furnished
information that has proven to be truthful ...." Thus, the kind, quality, and nature of
the information previously given by the informant must be provided to the issuing
magistrate so that there is more than mere reliance upon the affiant's assertion of
reliability.
The failure to establish the veracity of the confidential informant,
however, is not necessarily fatal to the affidavit. The ruling in Jacumin provides that
"independent police corroboration could make up deficiencies in either prong" of the
Aguilar-Spinelli test. State v. Jacumin, 778 S.W.2d at 436; see Spinelli v. United
States, 303 U.S. at 414-15. As a result, we must also consider whether the police
corroboration alleged in this affidavit is sufficient to satisfy the veracity prong of
Jacumin.
This court first addressed the issue of how much police corroboration
is needed to support a determination of reliability of information in Moon. The
question was framed as follows: "'Can it fairly be said that the tip, even when
certain parts of it have been corroborated by independent sources, is as trustworthy
as a tip which would pass Aguilar's tests without independent corroboration?'" State
6
v. Moon, 841 S.W.2d at 340 (quoting Spinelli v. United States, 393 U.S. at 414-15).
In Moon, the court found the affidavit to be inadequate due to a conclusory
allegation of corroboration, unaccompanied by any underlying facts:
["]Certainly, more than the corroboration of a few minor
elements of the story is necessary, especially if those
elements involve non-suspect behavior. It is equally
certain, though, that the police need not corroborate
every detail of an informant's report to establish sufficient
evidence of his veracity." ... [I]t is not necessary that the
events observed by the police supply probable cause by
themselves or that they point unequivocally in the
direction of guilt. It is sufficient that they are ‘unusual
and inviting explanation,’ though ‘as consistent with
innocent as with criminal activity.’ Thus, when an
untested informant says that he has seen horse race
bets taken at a steel plant and then passed through the
fence to defendant, police observation of packages being
passed to the defendant on several occasions ‘was
sufficient to establish the reliability of the informer in this
instance.’ Similarly, where an informer said narcotics
were being sold in a certain record shop and that he had
purchased narcotics and seen others there, this was
adequately corroborated by a half hour surveillance of
the shop resulting in ‘personal observation of known
narcotic addicts entering the premises, speaking with a
clerk, going to the rear of the store and then exiting with
no apparent purchase.’["]
State v. Moon, 841 S.W.2d at 341 (emphasis added)(quoting United States v. Bush,
647 F.2d 357, 363 (3rd Cir. 1981) and 1 Wayne R. LaFave, Search and Seizure §
3.3(f), at 683 (2d ed. 1978)).
In State v. Marshall, 870 S.W.2d 532 (Tenn. Crim. App. 1993), this
court reviewed a warrantless arrest where probable cause was based on an
anonymous informant's tip and police corroboration. The defendant argued the
arrest was illegal because the officer did not have a basis for determining the
reliability of the informant. By use of the standard in Moon, we found the presence
of probable cause. Although the police officer did not have a basis for determining
the informant's reliability, the corroboration was substantial. The police officer saw
cash change hands and observed the defendant "approaching cars, leaning inside
7
windows, and going back and forth from his shirt and pants pockets while leaning
into the cars." State v. Marshall, 870 S.W.2d at 536.
Here, the affidavit contains something more than a conclusory
allegation of police corroboration. Officer Harvey had confirmed "within the past five
days" that the informant had acquired marijuana which had been subjected to
seizure. That the officer had participated in the seizure of the same illegal drug from
the same premises just prior to the issuance of the warrant is the kind of
independent corroboration necessary to establish the reliability of the confidential
informant. This is more than a mere allegation of association with criminals; by
comparison, in Spinelli, the defendant was simply referred to as an "associate of
[known] bookmakers ... and [known] gamblers." 393 U.S. at 414. The United States
Supreme Court characterized that allegation as a "bald and unilluminating assertion
of suspicion that is entitled to no weight in appraising the magistrate's decision." Id.
In order to meet state constitutional standards, a search warrant’s affidavit must
allege facts which are "inviting of explanation" by the suspect. State v. Moon, 841
S.W.2d at 341. In our view, the contents of this affidavit, while less illuminating than
ideal, marginally satisfied the veracity prong. See State v. Wright, No. 01C01-9510-
CC-00326 (Tenn. Crim. App., at Nashville, Jan. 16, 1997).
Accordingly, the judgment is affirmed.
__________________________________
Gary R. Wade, Judge
CONCUR:
(See separate concurring opinion)
John H. Peay, Judge
8
_______________________________
Thomas T. Woodall, Judge
9