IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1997 SESSION
May 21, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellee, ) No. 01C01-9606-CR-00242
)
) Sumner County
v. )
) Honorable Jane W. Wheatcraft, Judge
)
DANNY RAY DORRIS, ) (Certified Question of Law)
)
Appellant. )
For the Appellant: For the Appellee:
David Allen Doyle Charles W. Burson
District Public Defender Attorney General of Tennessee
and and
Steven F. Glaser Peter Coughlan
Assistant Public Defender Assistant Attorney General of Tennessee
117 East Main Street 450 James Robertson Parkway
Gallatin, TN 37066 Nashville, TN 37243-0493
Lawrence Ray Whitley
District Attorney General
and
Dee Gay
Assistant District Attorney General
113 East Main Street
Gallatin, TN 37066
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Danny Ray Dorris, appeals as of right upon reservation of
a certified question of law from the Sumner County Criminal Court. Upon his plea of
guilty, the defendant was convicted of felonious possession with the intent to sell
marijuana and sentenced to two years, with ninety days of his sentence to be served in
jail and the remainder of his sentence to be served in a community corrections
program. The case arose from a search of the defendant’s residence pursuant to a
warrant. The certified question of law that is dispositive of the case is stated as follows:
Whether the information provided in the affidavit for the search
warrant was sufficient to allow the magistrate to make the
requisite independent determination of the reliability of the
informant and the information sought to be relied upon.
We hold that probable cause was shown to render the search warrant valid.
The affidavit of Jerry Carpenter, a drug task force officer, states as
follows:
YOUR AFFIANT HAS RECEIVED INFORMATION
FROM A CONFIDENTIAL INFORMANT WHO STATED THAT
DANNY R. DORRIS IS SELLING MARIJUANA FROM HIS
RESIDENCE AT 199 LAWRENCE TOWN ROAD IN
GALLATIN, SUMNER COUNTY TENNESSEE. WITHIN THE
LAST (5) FIVE DAYS, SAID CONFIDENTIAL INFORMANT
HAS MADE A CONTROLLED PURCHASE OF MARIJUANA
FROM DANNY DORRIS INSIDE THE ABOVE DESCRIBED
LOCATION. BEFORE THE PURCHASE THE SAID
INFORMANT AND INFORMANTS VEHICLE WERE
SEARCHED FOR CONTRABAND AND NONE WAS FOUND.
SAID INFORMANT WAS EQUIPPED WITH A POLICE
CONSENSUAL LISTENING DEVICE AND GIVEN
UNDERCOVER BUY MONEY TO PURCHASE MARIJUANA
FROM DANNY DORRIS. SAID INFORMANT ALONG WITH
INV. GREG BUNCH WERE THEN FOLLOWED BY YOUR
AFFIANT AND INV. MONTY MCCURRY TO DORRIS’S
RESIDENCE. SAID INFORMANT WAS THEN OBSERVED
BY INV. GREG BUNCH TO ENTER THE RESIDENCE.
YOUR AFFIANT AND INV. MONTY MCCURRY MONITORED
AND RECORDED CONVERSATION BETWEEN DORRIS
AND THE INFORMANT IN WHICH MARIJUANA WAS SOLD
TO THE INFORMANT BY DANNY DORRIS. AFTER THE
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PURCHASE THE SAID INFORMANT THEN GAVE INV.
GREG BUNCH THE MARIJUANA WHICH THE INFORMANT
STATED WAS PURCHASED FROM DANNY DORRIS. YOUR
AFFIANT LATER FIELD TESTED THE SAID MARIJUANA
WHICH FIELD TESTED POSITIVE AS MARIJUANA A SCH.
VI CONTROLLED SUBSTANCE.
FURTHERMORE YOUR AFFIANT AND OTHER
MEMBERS OF THE 18th JUDICIAL DISTRICT DRUG TASK
FORCE HAVE RECEIVED INFORMATION THAT DANNY
DORRIS HAS BEEN TRAFFICKING MARIJUANA FROM HIS
RESIDENCE, 199 LAWRENCE TOWN ROAD GALLATIN,
TENNESSEE. YOUR AFFIANT ALSO CONFIRMED THAT
DORRIS HAS AT LEAST (3) THREE PREVIOUS ARRESTS
AND CONVICTIONS FOR TRAFFICKING OR SELLING
MARIJUANA.
SAID CONFIDENTIAL AND RELIABLE INFORMANT
HAS PROVIDED YOUR AFFIANT WITH INFORMATION
THAT HAS BEEN CORROBORATED WITH INFORMATION
YOUR AFFIANT FOUND TO BE TRUE. THE CONFIDENTIAL
AND RELIABLE INFORMANT HAS NEVER GIVEN YOUR
AFFIANT INFORMATION THAT WAS FOUND TO BE FALSE.
The defendant contends that this affidavit fails to establish probable cause to believe
that he was possessing marijuana in his residence under the two-prong standard
provided in State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989), for evaluating informant
hearsay.
In Jacumin, our supreme court held that under Article I, Section 7 of the
Tennessee Constitution probable cause based upon informant hearsay requires a
showing (1) of the informant’s basis of knowledge and (2) of either his credibility or the
reliability of his information. Id. at 432, 436. Relative to a search warrant, this means
that a magistrate must make a neutral and detached judgment that the affidavit before
him or her shows probable cause to issue the warrant. See State v. Moon, 841 S.W.2d
336, 338 (Tenn. Crim. App. 1992).
As for the informant’s basis of knowledge, the defendant acknowledges
that a controlled purchase of marijuana by the informant occurred at the defendant’s
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residence, and that the informant said it was from the defendant. The defendant also
admits that the police aurally monitored the transaction by a hidden microphone.
However, he claims that the informant’s “uncorroborated” assertion that the defendant
was the seller makes his basis of knowledge “open to question.” As for the informant’s
reliability, the defendant claims that it was not shown in the affidavit other than through
the affiant’s assertion of reliability.
The defendant’s arguments essentially carry a standard of absolute
certainty that is alien to search and seizure law, which is primarily based upon
reasonableness. The United States Supreme Court has defined probable cause as
“whether at that moment the facts and circumstances within [police] knowledge and of
which they had reasonably trustworthy information were sufficient to warrant a prudent
man in believing that the petitioner had committed . . . an offense.” Beck v. Ohio, 379
U.S. 89, 91, 85 S. Ct. 223, 225 (1964). See State v. Meeks, 876 S.W.2d 121, 124
(Tenn. Crim. App. 1993). Our supreme court has stated:
In dealing with probable cause, one deals with probabilities.
These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and
prudent men, not legal technicians, act.
State v. Jefferson, 529 S.W.2d 674, 689 (Tenn. 1975).
We believe that as a result of the live monitoring of a drug transaction at
the residence of the defendant, a known convicted drug dealer, whom the buying
informant, a person used by the police to gather information in previous successful
criminal drug investigations, said was the marijuana seller, there was probable cause to
believe that the defendant possessed marijuana, drug paraphernalia, or other evidence
of illegal drug dealings so as to justify the issuance of a search warrant for his
residence. No further analysis is needed.
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In consideration of the foregoing, and the record as a whole, the judgment
of conviction is affirmed.
___________________________
Joseph M. Tipton, Judge
CONCUR:
_________________________
Joe G. Riley, Judge
_________________________
Thomas T. W oodall, Judge
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