IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 5, 2006 Session
STATE OF TENNESSEE v. DELAWRENCE WILLIAMS
Appeal by Permission from the Court of Criminal Appeals
Circuit Court for Dyer County
No. C03-405 Lee Moore, Judge
No. W2004-01682-SC-R11-CD - Filed on May 23, 2006
We granted this interlocutory appeal to review (1) whether the information used to obtain a search
warrant to search the defendant’s residence was provided by a “citizen informant” and thus
presumptively reliable; and (2) whether the information, if not provided by a “citizen informant,”
nonetheless established probable cause under State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989). The
trial court denied the defendant’s motion to suppress after finding that the information had not been
provided by a citizen informant but that it nonetheless established probable cause under Jacumin.
The Court of Criminal Appeals concluded that the information was presumptively reliable because
it had been given by a citizen informant and upheld the denial of the motion to suppress without
applying Jacumin. After reviewing the record and applicable authority, we hold (1) that the trial
court and the Court of Criminal Appeals properly granted the interlocutory appeal pursuant to Rule
9 of the Tennessee Rules of Appellate Procedure and (2) that although the information used to obtain
the search warrant for the defendant’s residence was not provided by a “citizen informant,” it
established probable cause under Jacumin. The judgment is, therefore, affirmed for the reasons
herein.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Affirmed
E. RILEY ANDERSON , J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and
ADOLPHO A. BIRCH , JR., JANICE M. HOLDER , and CORNELIA A. CLARK, JJ., joined.
Charles M. Agee, Jr., Dyersburg, Tennessee, for the Appellant, Delawrence Williams.
Paul G. Summers, Attorney General and Reporter; Michael R. Moore, Solicitor General; Mark A.
Fulks, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the
Appellee, State of Tennessee.
OPINION
BACKGROUND
The defendant, Delawrence Williams (“Williams”), was indicted for possession of over one-
half gram of cocaine with the intent to sell or deliver. He filed a motion to suppress the evidence,
arguing that probable cause had not been shown for the issuance of a search warrant. After the trial
court denied the motion to suppress, the trial court and the Court of Criminal Appeals granted an
interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Court
of Criminal Appeals affirmed the trial court’s decision to deny the motion to suppress.
We granted this interlocutory appeal to review (1) whether the information used to obtain a
search warrant to search the defendant’s residence was provided by a “citizen informant” and
presumptively reliable and (2) whether the information, if not provided by a “citizen informant,”
nonetheless established probable cause under State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989). We
begin by summarizing the evidence from the suppression hearing that was held before the trial court
on the defendant’s motion to suppress.
Terry McCreight, an Investigator with the Dyer County Sheriff’s Department, testified that
officers responded to a domestic disturbance call at the defendant’s home on September 28, 2003.
The defendant and his girlfriend, Vivial Taylor (“Taylor”), were both arrested on charges of domestic
violence.
As Taylor was arrested, she told McCreight that “if she was going to jail,” then the defendant
“was going to jail for a long time because there was drugs in the house.” McCreight knew that the
defendant had a prior drug-related conviction; Taylor, on the other hand, did not have a criminal
record, was not an informant, and was not involved in the sale or use of drugs. McCreight said that
Taylor “did not seem irate” when she told him about the drugs in the house. He conceded, however,
that he did not consider her reason for providing the information and whether her motive was
revenge against the defendant.
After calling the District Attorney General, McCreight obtained a search warrant on the basis
of the following affidavit:
[Investigator McCreight] makes oath that he has reason to believe that
there is probable cause for believing that B/M Delawrence Williams
is/are in possession of the following described property, to wit:
Marijuana and Cocaine . . . upon the following described premises to
wit: beginning 440 Bean rd. [sic] . . . . [O]n 09/28/03 at 14:42 hrs the
Dyer County Sheriff’s Dept. Deputies were dispatched to 440 Bean
Mill rd. [sic] in reference to a domestic disturbance. Upon deputies
[sic] arrival to the scene Deputy Kenny Gibbons and Deputy Lynn
Waller made contact with b/f [V]ivial Taylor and b/m Delawrence
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Williams. After deputies interviewed both subjects[,] investigation
revealed that Vivial Taylor was the girlfriend of b/m Delawrence
Williams and there was evidence [that] domestic violence had
occurred at the residence. Deputies arrested Delawrence Williams
and Vivial Taylor for Domestic Violence Assault. B/f Vival [sic]
Taylor stated to deputies that there was Cocaine and Marijuana inside
of the residence. Vivil [sic] Taylor stated she stayed overnight on
09/27/03 at the residence and saw cocaine in the closet of Delawrence
Williams [sic] residence. Vival [sic] Taylor stated that she also saw
marijuana in the residence. B/m Delawrence Williams recently
plead[ed] guilty in Circuit Court of Dyer County to a Cocaine Charge.
When the search warrant was executed, Taylor allowed officers into the defendant’s home with her
key. The search of the defendant’s residence uncovered both cocaine and marijuana in the
defendant’s bedroom.
The defendant argued that the affidavit in support of the search warrant did not establish
probable cause because Vivial Taylor was not a citizen informant and because the affidavit did not
satisfy the two-prong standard for probable cause under State v. Jacumin, 778 S.W.2d at 436. The
State argued that the affidavit established probable cause because Vivial Taylor was a citizen
informant whose statements were presumptively reliable. The State also argued that the affidavit
established probable cause under Jacumin.
Although the trial court found that Vivial Taylor was “not part of the criminal milieu dealing
with the drugs in question,” it concluded that Taylor was not a citizen informant because she was
“part of the domestic disturbance dispute that prompted the initial call to law enforcement officers”
and because “revenge could very well [have been] her reason for her statement.” The trial court
nonetheless concluded that the affidavit established probable cause under Jacumin:
[T]he affidavit sufficiently demonstrates the basis of the informant’s
knowledge and the reliability of the information provided. Ms.
Taylor was the defendant’s girlfriend. She had stayed the night
before in the defendant’s home and had observed cocaine and
marijuana. The defendant had recently pled guilty to a cocaine
charge.
The Court of Criminal Appeals granted this interlocutory appeal, see Tenn. R. App. P. 9, and
affirmed the trial court’s denial of the motion to suppress. Unlike the trial court, however, the Court
of Criminal Appeals concluded that Vivial Taylor was a citizen informant:
The affidavit specifically identified her by name. Furthermore, it
provided a particularized explanation for why she was in the
residence and how she happened upon her information about the
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drugs, stating that she was the defendant’s girlfriend and had spent
the previous evening in the defendant’s home, where she had seen the
drugs. In addition, it contained the corroborating information by
Investigator McCreight that he was aware of the defendant’s having
recently pled guilty to the sale or possession of cocaine.
The court thus concluded that the affidavit established probable cause because the information
provided by Taylor was “presumptively reliable” and was corroborated by Investigator McCreight’s
knowledge of the defendant’s prior criminal history.
We then granted review.
ANALYSIS
Interlocutory Appeal
The State contends that the search issue decided by a pretrial ruling does not meet the criteria
for an interlocutory appeal. With respect to the lower courts’ decisions to grant interlocutory review,
we first consider the language of Rule 9 of the Tennessee Rules of Appellate Procedure. The rule
provides that “[i]n determining whether to grant” an interlocutory appeal, factors which “neither
control[] nor fully measur[e] the court’s discretion,” but “indicate the character of the reasons that
will be considered” are:
(1) the need to prevent irreparable injury, giving consideration to the
severity of the potential injury, the probability of its occurrence, and
the probability that review upon entry of final judgment will be
ineffective; (2) the need to prevent needless, expensive, and
protracted litigation, giving consideration to whether the challenged
order would be a basis for reversal upon entry of a final judgment, the
probability of reversal, and whether an interlocutory appeal will result
in a net reduction in the duration and expense of the litigation if the
challenged order is reversed; and (3) the need to develop a uniform
body of law, giving consideration to the existence of inconsistent
orders of other courts and whether the question presented by the
challenged order will not otherwise be reviewable upon entry of final
judgment.
Tenn. R. App. P. 9(a).
We recently observed that “interlocutory appeals to review pretrial orders or rulings, i.e.,
those entered before a final judgment, are ‘disfavored,’ particularly in criminal cases.” State v.
Gilley, 173 S.W.3d 1, 5 (Tenn. 2005) (quoting United States v. MacDonald, 435 U.S. 850, 853
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(1978)). We explained that interlocutory review of pretrial rulings can create piecemeal appellate
litigation and create delay. Id. (citing Cobbledick v. United States, 309 U.S. 323, 325 (1940)).
In Gilley, for instance, both the Court of Criminal Appeals and the trial court granted an
interlocutory appeal to review the trial court’s evidentiary rulings under Rule 404(b) of the
Tennessee Rules of Evidence. We held, however, that the courts erred in granting the interlocutory
appeal because a trial court’s rulings under Rule 404(b) can be challenged in an appeal as of right
if the defendant is convicted and because the interlocutory appeal was not likely to prevent needless,
expensive, and protracted litigation for either the defendant or the State. Gilley, 173 S.W.3d at 6.
In contrast, the decision to grant interlocutory review in this case is supported by the trial
court’s findings and the record. There is no doubt that the defendant may appeal the suppression
issue if convicted following a trial. However, the trial court specifically found that “if the Court
finds the defendant’s position is well-taken, it would avoid the time and expense of a trial for the
defendant and for the State of Tennessee.” In addition, the trial court found that there was “a need
to establish a uniform body of law” in determining whether information used to obtain a search
warrant has been provided by a citizen informant. Given these specific findings by the trial court,
we agree that the grant of the interlocutory appeal was appropriate under Rule 9 of the Tennessee
Rules of Appellate Procedure.
Probable Cause for Search Warrant
Turning to the substantive issues, we begin with a review of familiar constitutional
principles. First, article I, section 7 of the Tennessee Constitution states:
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.
Next, the Fourth Amendment states in part that “no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched, and the
persons and things to be seized.” U.S. Const. Amend. IV.
These constitutional principles require that a search warrant be issued only on the basis of
a supporting affidavit that establishes probable cause before a “neutral and detached” magistrate.
Jacumin, 778 S.W.2d at 431; see also State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999). Probable
cause generally requires reasonable grounds for suspicion, supported by circumstances indicative of
an illegal act. Stevens, 989 S.W.2d at 293.
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When courts review an affidavit used to establish probable cause for a search warrant, a
distinction is made between information provided by “citizen” or “bystander” informants and
information provided by “criminal informants” or an informant from a “criminal milieu.” Id.; see
also State v. Melson, 638 S.W.2d 342, 354 (Tenn. 1982). The information provided by a citizen
informant is “presumed to be reliable.” Stevens, 989 S.W.2d at 293 (quoting Melson, 638 S.W.2d
at 356). In contrast, the information from a criminal informant must be examined under the two-part
analysis adopted in Jacumin:1 the affidavit used to support a search warrant must show (1) the basis
for the informant’s knowledge and (2) the reliability of the informant or the information. 778
S.W.2d at 436; see also State v. Cauley, 863 S.W.2d 411, 417 (Tenn. 1993). Both prongs of this
analysis must be independently considered and satisfied. Stevens, 989 S.W.2d at 294.
In Stevens, we noted that “[i]nformation 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.” Id. (quoting State v. Smith, 867
S.W.2d 343, 347 (Tenn. Crim. App. 1993)). A citizen informant, however, “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[]” and who “does not expect any gain or concession in exchange for his
information.” Id.; see also State v. Marcus, 660 N.W.2d 837, 842 (Neb. 2003) (noting that citizen
informants have no “motive to exaggerate, falsify, or distort the facts to serve [their] own ends”).
In Stevens, the affidavit stated that an “adult concerned citizen source” had told officers he
had seen methamphetamine being stored and cooked at a residence within the prior seventy-two
hours. The affidavit further stated that the “citizen” was believed to be “reliable and truthful,” had
asked for no payment in providing the information, and had “acted on civic duty.” 989 S.W.2d at
292. We held that the affidavit contained mere assertions that the information was obtained from
a “citizen informant” and that there was no “particularized showing or explanation” in the affidavit
to bolster or corroborate the assertions. Id. at 294-95. We nonetheless concluded that the affidavit
established probable cause under Jacumin by showing the basis of the informant’s knowledge and
the reliability of the information. Id. at 295.
In some cases, however, information used to obtain a search warrant may be provided by one
who is neither a “citizen” or a “bystander” informant on one hand nor a “criminal” informant on the
other. In United States v. Phillips, 727 F.2d 392 (5th Cir. 1984), for instance, the affidavit in support
of a search warrant was based on information from an estranged wife whose husband had threatened
to shoot her. The court observed that, unlike “citizen informants,” some informants may be involved
with the defendant whose person or residence is to be searched and may “have personal reasons for
1
The test was derived from two United States Supreme Court cases, Aguilar v. Texas, 378 U.S. 108 (1964),
and Spinelli v. United States, 393 U.S. 410 (1969), in which the Court said that an affidavit based on information from
a confidential informant must contain facts demonstrating the basis of the informant’s knowledge and the credibility of
either the informant or the information. Although the Supreme Court later abandoned this analysis for a totality of
circumstances approach, Illinois v. Gates, 462 U.S. 213 (1983), this Court kept the Aguilar-Spinelli analysis under article
I, section 7 of the Tennessee Constitution. Jacumin, 778 S.W .2d at 436.
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giving shaded or otherwise inaccurate information to law enforcement officials . . . .” Id. at 397
(quoting United States v. Flynn, 664 F.2d 1296, 1302-03 (5th Cir. 1982)). The court emphasized
that the wife “had recently quarreled with and left her husband” and that she did “not fit comfortably
within the description of an ‘eyewitness-bystander.’” Phillips, 727 F.2d at 397. Although the court
found that the information was not “presumptively reliable,” it went on to conclude that probable
cause had been established under a totality of circumstances analysis. Id.; see also Hodsdon v. State,
698 P.2d 1224, 1228 (Alaska Ct. App. 1985) (court determined that informant was “somewhere
between a citizen informant and a police informant” and thus, applied traditional probable cause
analysis).
In other similar cases, courts have analyzed probable cause without affording a possible
citizen informant a presumption of reliability. See Massachusetts v. Upton, 466 U.S. 727 (1984)
(finding probable cause under the totality of circumstances analysis where information was provided
by an estranged girlfriend); State v. Wilke, 778 P.2d 1054 (Wash. Ct. App. 1989) (finding probable
cause under the two-prong Aguilar-Spinelli test where information was provided by the defendant’s
ex-wife); State v. Luleff, 729 S.W.2d 530 (Mo. Ct. App. 1987) (finding probable cause under the
totality of circumstances analysis where information was provided by the defendant’s estranged
wife).
Here, the affidavit did not indicate that the informant, Vivial Taylor, was a criminal
informant or part of the “criminal milieu” as to the underlying offenses, i.e., the defendant’s
possession of cocaine. Similarly, Investigator McCreight testified that Taylor was not involved in
any drug-related offenses. On the other hand, the affidavit also did not establish that Taylor provided
the information as a law-abiding citizen motivated solely by a sense of civic duty; she did not, for
instance, contact police prior to her arrest to report the defendant’s possession of cocaine. Compare
Phillips, 727 F.2d at 393. To the contrary, the affidavit states that Taylor told officers about the
defendant’s possession of cocaine only when she was in the midst of a domestic disturbance that led
to her arrest and the arrest of the defendant. Although Investigator McCreight testified that Taylor
did not seem irate, he acknowledged that he did not consider whether she was acting for revenge or
a similar motivation. Under these circumstances, and in the absence of additional particularized
information in the affidavit, see Stevens, 989 S.W.2d at 294-95, we agree with the trial court that
Taylor’s information was not presumptively reliable as a citizen informant.
Accordingly, we next turn to whether the affidavit established probable cause under the two-
prong test in Jacumin. First, the affidavit established the basis of knowledge prong in that Taylor
saw cocaine and marijuana in the defendant’s home and had firsthand knowledge of the facts. See
Stevens, 989 S.W.2d at 295. Second, the affidavit did not establish Taylor’s reliability but instead
established the information’s reliability; indeed, the affidavit revealed that Taylor described the
specific drugs in the defendant’s residence and the location of the drugs. See id. In addition, she
shared the defendant’s residence, and she had a key to the home that she used in allowing officers
to execute the search warrant. Moreover, the information was also corroborated by Investigator
McCreight’s knowledge of the defendant’s prior drug-related conviction. In sum, we conclude that
the affidavit established probable cause under the two-prong analysis in Jacumin.
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CONCLUSION
After reviewing the record and applicable authority, we hold (1) that the trial court and the
Court of Criminal Appeals properly granted the interlocutory appeal pursuant to Rule 9 of the
Tennessee Rules of Appellate Procedure and (2) that although the information used to obtain the
search warrant for the defendant’s residence was not provided by a “citizen informant,” it established
probable cause under the two-prong analysis in Jacumin. The judgment is, therefore, affirmed on
the grounds set out. The costs of the appeal are taxed to the defendant, Delawrence Williams, and
his surety, for which execution shall issue if necessary.
___________________________________
E. RILEY ANDERSON, JUSTICE
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