State v. Stevens

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
(HEARD AT MEMPHIS)

FILED
FOR PUBLICATION
February 1, 1999
Filed: February 1, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellee, ) HENRY CRIMINAL
)
)
Vs. ) HON. JULIAN P. GUINN,
) JUDGE
GERALD ROBERT STEVENS, )
LAURIE ANN WILLIAMS and )
JAMES DARREN BROTHERS, ) No. 02-S-01-9712-CC-00112
)
Appellants. )

For Appellants, For Appellee:
Stevens & Williams: John Knox Walkup
David H. Hornik Attorney General & Reporter
Nashville, Tennessee
Michael E. Moore
For Appellant, Brothers: Solicitor General
Eric D. Kinsolving
Old Hickory, Tennessee Kathy Morante
Deputy Attorney General
Nashville, Tennessee

At Trial:
Robert G. Radford
District Attorney General

Vicki Snyder
Assistant District Attorney General
Huntingdon, Tennessee

OPINION

COURT OF CRIMINAL APPEALS
AFFIRMED. ANDERSON, C.J.
 We granted this appeal to determine whether a conclusory allegation in an

affidavit that information was provided by a “concerned citizen source” is sufficient to

establish the presumptive reliability of the information for the issuance of a search

warrant under the Fourth Amendment to the United States Constitution and Article I,

§ 7 of the Tennessee Constitution.1

There is a distinction in Tennessee law between “citizen informants” and

“criminal informants” or those from the criminal milieu. Information provided by an

unnamed ordinary citizen is presumed to be reliable, and the affidavit need not

establish that the source is credible or that the information is reliable. State v.

Melson, 638 S.W.2d 342, 354 (Tenn. 1982), cert. denied, 459 U.S. 1137, 103 S. Ct.

770, 74 L. Ed. 2d 983 (1983). On the other hand, where information is provided by

an anonymous criminal informant, the affidavit must establish (1) the basis of the

informant’s knowledge, and (2) the reliability of the informant or the information.

State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989).

The trial court determined that the information in the affidavit established

probable cause for the search warrant and denied the defendants’ motion to

suppress. The Court of Criminal Appeals, concluding that the affidavit contained

presumptively reliable information from a citizen informant, agreed that probable

cause existed for the issuance of the search warrant and affirmed. See Melson, 638

S.W.2d at 354.

After reviewing the record and applicable authority, we conclude that the

lower courts erred in determining that the information was provided by a citizen

1
Ora l argu me nt wa s hea rd in th is cas e on M ay 12, 1998 , in Me mp his, S helby C oun ty,
Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. (Supreme Court Advancing Lega l Education for Students)
project.

-2-
source and was, therefore, presumptively reliable. We further conclude, however,

that when reviewed under the separate standard applicable to confidential criminal

informants, the affidavit satisfied the two-pronged standard adopted in Jacumin.

Therefore, we conclude that the search warrant was supported by probable cause,

and we affirm the result reached by the Court of Criminal Appeals on the separate

grounds stated.

BACKGROUND

Law enforcement officers received information from a “concerned citizen” source

that methamphetamine was being cooked and stored at a residence in Henry County.

They sought and obtained a search warrant for the residence based on the following

affidavit:

An adult concerned citizen source who is believed to be credible and
liable [sic] and who resides in Henry County and has family ties to Henry
County has told the affiant that they had seen methamphetamine being
stored and cooked within 72 hours prior to the swearing of this affidavit
at the above stated residence. The citizen told the affiant that they had
seen several flask [sic], tubes, hot plate [sic] and several jugs sat [sic] up
in the rear room of the residence. The citizen told the affiant of the
cooking process they had seen and the affiant having knowledge of the
cooking process, believed the citizen to be reliable and truthful in their
information. The citizen ask [sic] for no payment for their information and
acted on civic duty. Based on the above stated information the affiant
believes that Williams is cooking and storing methamphetamine at the
said resident [sic]. The citizen source was furnished with the finished
product of what they had seen being cooked and immediately turned over
to Officer Wyrick and Officer Eaker. The product was field tested and
product was found to be methamphetamine. The affiant asked that the
search warrant be valid up to 48 hours for securing and execution of the
search warrant to allow D.E.A. participation from agents outside the state.

As a result of the search, the police recovered over 64 grams of

methamphetamine base in the kitchen, 7.8 grams of methamphetamine powder in

the bedroom, 1 gram of 96% pure methamphetamine powder in the utility room, 3

sets of scales, a box containing glassware and tubing, a notebook with instructions

on how to manufacture methamphetamine, chemistry books, $4,900 in cash, and a

-3-
wallet containing $1,100. Additionally, all the chemicals necessary to manufacture

methamphetamine (ephedrine, red phosphorous, iodine, muriatic acid, and acetone)

were found at the residence. The police later obtained a second search warrant to

search a storage shed leased to defendants Stevens and Williams. In this shed, the

police found glassware, tubes, funnels, and over 2,870,000 encased ephedrine

tablets.

The defendants2 moved to suppress the evidence from the search of the

house on the grounds that the affidavit did not establish probable cause for the

issuance of a search warrant. The defendants argued that the affidavit did not

establish that the informant was reliable, that the informant knew what

methamphetamine looked like, or that the informant had knowledge of the cooking

process. The defendants also argued that the informant was not a “citizen source”

because he or she remained unnamed and was paid $200 as a reward for providing

the police department with a “good case.” The trial court overruled the motions to

suppress.

The jury convicted all three defendants of manufacturing a Schedule II

controlled substance (methamphetamine) and possession of unlawful drug

paraphernalia.3 On appeal, the Court of Criminals Appeals concluded that the

information in support of the warrant had been obtained from a “citizen source” and

affirmed the trial court’s denial of the motion to suppress.

2
Although all three defendants were present when the initial search was executed, only Stevens
and Williams filed a motion to suppress to contest the constitutionality of the search.

3
For the manufacture of a Schedule II controlled substance, a class C felony, Stevens was
sentenced to five years and Williams and Brothers to three years and six months incarceration in the
Tennessee Department of Correction. For possession of unlawful drug paraphernalia, a class A
misd eme anor, Ste vens, W illiams, and Brothers were se ntence d to 11 m onths a nd 29 da ys in the cou nty
jail. They were each fined $102,500 for the manufacturing and possession convictions.

-4-
 We granted this appeal to review whether the lower courts properly

determined that the information had been provided by a citizen informant and that

probable cause had been established for the issuance of the search warrant.

ANALYSIS

We begin our review by examining Article I, § 7 of the Tennessee Constitution

which 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 committed, or to seize any person or
persons not named, whose offenses are not particularly described and
supported by evidence, are dangerous to liberty and ought not be
granted.

Tenn. Const. art. I, § 7. Likewise, the Fourth Amendment of the United States

Constitution states:

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 warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

As a general rule, a search warrant shall be issued only on the basis of an

affidavit, sworn before a “neutral and detached” magistrate, which establishes

probable cause for its issuance. See Jacumin, 778 S.W.2d at 431; State v. Moon,

841 S.W.2d 336, 338 (Tenn. Crim. App. 1992). A showing of probable cause

requires, generally, reasonable grounds for suspicion, supported by circumstances

indicative of an illegal act. State v. Johnson, 854 S.W.2d 897, 899 (Tenn. Crim.

App. 1993). Thus, the need for the magistrate to make a neutral and detached

-5-
decision regarding the existence of probable cause requires that the affidavit contain

more than mere conclusory allegations by the affiant. Moon, 841 S.W.2d at 338.

In determining the reliability of information contained in an affidavit in support

of a search warrant, there is a significant distinction between a “citizen informant,” or

bystander witnesses, and “criminal informants,” or those from a “criminal milieu.”

Melson, 638 S.W.2d at 354. Information provided by a citizen or bystander witness

that is known to the affiant is presumed to be reliable; and the state is not required

to establish either the credibility of the informant or the reliability of the information.

Although the name of the citizen informant does not have to be disclosed, “the

reliability of the source and the information must be judged from all of the

circumstances and from the entirety of the affidavit.” Melson, 638 S.W.2d at 356.

Conversely, if the source is a criminal informant, the determination of

reliability must be based on the two-pronged Aguilar-Spinelli test, which was

adopted by this Court in Jacumin, 778 S.W.2d at 436.4 The magistrate issuing the

search warrant must be “informed of both (1) the basis for the informant’s

knowledge, and either (2)(a) a basis establishing the informant’s credibility or (2)(b)

a basis establishing that the informant’s information is reliable.” State v. Cauley,

863 S.W.2d 411, 417 (Tenn. 1993) (citation omitted). Probable cause may not be

4
The tes t was de rived from two Unite d States Suprem e Cou rt cases , Aguilar v. Texas, 378 U.S.
108, 114, 84 S. Ct. 1509, 1514, 21 L. Ed. 2d 637 (1964), and Spinelli v. United States, 393 U.S. 410, 412-
13, 89 S. Ct. 584, 587, 21 L. Ed. 2d 637 (1969 ), in which the Court said that an affidavit in support of a
search warrant which contains information from a confidential informant must contain facts demonstrating
the inform ant’s bas is of kno wledge and eithe r the inform ant’s cred ibility or the inform ation’s reliability.
Although the Supreme Court later abandoned this analysis in favor of a totality of circumstances
approa ch, Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 , 76 L. Ed. 2d 527 (1983), this Court
has retained the Aguilar-Spin elli test unde r Article I, § 7 of th e Ten nesse e Con stitution. Jac um in, 778
S.W.2d at 436.

-6-
found until both prongs are independently considered and satisfied. State v.

Ballard, 836 S.W.2d 560, 562 (Tenn. 1992).

The rationale for distinguishing between citizen informants and confidential

criminal informants has been stated as follows:

Information supplied to officers by the traditional police informer is not
given in the spirit of a concerned citizen, but often is given in exchange
for some concession, payment, or simply out of revenge against the
subject. The nature of these persons and the information which they
supply convey a certain impression of unreliability, and it is proper to
demand that some evidence of their credibility and reliability be shown
. . . . However, an ordinary citizen who reports a crime which has been
committed in his presence, or that a crime is being or will be
committed, stands on much different ground than a police informer.
He is a witness to criminal activity who acts with an intent to aid the
police in law enforcement because of his concern for society or for his
own safety. He does not expect any gain or concession in exchange
for his information. An informer of this type usually would not have
more than one opportunity to supply information to the police, thereby
precluding proof of his reliability by pointing to previous accurate
information which he has supplied . . . .

State v. Smith, 867 S.W.2d 343, 347 (Tenn. Crim. App. 1993) (emphasis omitted)

(quoting State v. Paszek, 184 N.W.2d 836, 842-43 (Wis. 1971)).

We believe the evidence preponderates against the lower courts’ finding that

the citizen informant standard under Melson applies in this case. See State v.

Odom, 928 S.W.2d 18, 23 (Tenn. 1996) (proper standard of review in suppression

cases is the preponderance of the evidence standard). The affidavit contained only

conclusory allegations that the informant was a “concerned citizen source,” “acted

on civic duty,” and “ask [sic] for no payment for their information.” There is no

explanation as to why the citizen was in the house while methamphetamine was

being cooked and/or why the “citizen” was “furnished with the finished product.” The

police did explain why the citizen was later paid $200. It was a reward for a good

-7-
case.5 The unexplained circumstances warrant caution in determining whether the

informant is a presumptively reliable citizen. As Professor LaFave has explained:

[A]s a general proposition it is an informant from the criminal milieu
rather than a law-abiding citizen who is most likely to be present under
such circumstances. This is not to suggest that a person giving
information about the location of narcotics may never qualify as a
citizen-informer, for it is sometimes possible to show with particularity
how a law-abiding individual happened to come upon such knowledge.
Rather, the point is that in such a case it should not be deemed
sufficient that the police have alleged in a rather conclusory fashion
that the person was “an individual who is neither a paid nor habitual
informant,” “a responsible citizen of utmost character and integrity” or
“a reputable member of the community.” Perhaps a more
particularized showing of the law-abiding nature of the person
supplying the information will suffice. . . .

Wayne R. LaFave, 2 Search and Seizure, § 3.4(a) (3d ed. 1996) (first emphasis

added) (footnotes omitted); cf. Cauley, 863 S.W.2d at 417 (non-accusatory

information that did not describe criminal activity was not in the nature of a criminal

informant’s tip). A particularized showing or explanation was absent in this case,

and there are no other facts or circumstances that may be gleaned from the affidavit

that would bolster or corroborate the conclusory descriptions of the “citizen.”

Accordingly, the affidavit does not establish that the information was provided by a

citizen informant, nor does it warrant a presumption of reliability as the lower courts

concluded.

Having concluded that the Melson standard does not apply to this case, we

turn to the question of whether the affidavit is nonetheless sufficient because it

satisfies the two-prongs of the Jacumin test. With regard to the informant’s basis of

5
The defendants’ main contention is that the Melson standard does not apply to this case
because the “concerned citizen source” was paid. The fact of payment to a citizen in exchange for
information does not always make the Melson standard inapplicable. There is a logical distinction
between one who receives payment at or near the time the information is provided and one who receives
paym ent or rew ard only afte r the truth of the inform ation has been ve rified. See People v. Stevens, 423
N.E.2d 1340 (Ill. 1981).

-8-
knowledge, the affidavit sufficiently established that the informant had witnessed

firsthand the cooking process and the equipment used to manufacture

methamphetamine on the premises. See, e.g., Moon, 841 S.W.2d at 339 (“‘basis of

knowledge’ prong is supported in this case by the informant seeing ‘marijuana being

used and/or distributed’ at the defendant’s residence”). With regard to the reliability

of the informant, the affidavit states only that the “citizen” was “believed to be

credible and [re]liable.” Although this assertion alone is insufficient to establish the

veracity of the informant, see State v. Valentine, 911 S.W.2d 328, 330 (Tenn. 1995),

the statements indicating that a positive field test was performed on the “finished

product” in the informant’s possession sufficiently demonstrated the reliability of the

information. See Ballard, 836 S.W.2d at 562-63 (informant’s description of unique

jewelry that matched the victim’s description sufficient for magistrate to conclude

that the information was reliable); see also LaFave, supra, § 3.3(f). Thus, we

conclude that the affidavit satisfied both prongs of the Jacumin test and supported a

finding of probable cause for the issuance of the search warrant.

CONCLUSION

We conclude that the affidavit in this case contained sufficient information for

the issuing magistrate to find probable cause for the issuance of a search warrant.

Although the lower courts erroneously determined that the informant was a “citizen

source” and applied the Melson standard, our review indicates that the affidavit

satisfied the two-prong test governing confidential informants as set forth in

Jacumin. Therefore, the Court of Criminal Appeals’ judgment is affirmed on the

separate grounds stated. The costs of this cause are taxed to the defendants-

appellants.

__________________________________
RILEY ANDERSON, CHIEFJUSTICE

-9-
CONCUR:
Drowota, Birch, Holder, and Barker, JJ.

-10-