# FILED
February 1, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON (HEARD AT MEMPHIS)

FOR PUBLICA

TION Filed: February 1, 1999 STATE OF TENNESSEE, ) ) 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-001 12 ) Appellants. )

For Appellant

s, For Appellee: Stevens & Williams: John Knox Walkup David H. Hornik Attorney General & Repor ter Nashville, Tennessee Michael E. Moore For Appellant, Brothers: Solicitor General Eric D. Kinsolvin g Old Hickory, Tennessee Kathy Morante Deputy Attorney General Nashville, Tennessee
At Trial: Robert G. Radford District Attorney General Vicki Snyder Assistant District A

ttorney General Huntingdon, Tennessee



## O P I N I O N

COURT OF CRIMINAL APPE ALS AFFIRMED. AND ERS ON, C.J

.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. ( S upreme C ourt A dvancing L ega l E ducation for S tudents) project. -2- We granted this appeal to determine whether a conclusory alleg ation in an affidavit that information was provided by a “concer ned citizen source” i s sufficient to establish the presumptive reliability of the information fo r 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 a n unnamed ordinary citiz en is presumed to be reliable , and the affidavit need not establish that the source i s 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 i s 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 (Te nn. 1989).

The trial court determined that the information in the affidavit es tablished probable cause for the search w arrant and denied the defendants’ motion to suppress. The Court of Crimi nal Appeals, concluding tha t the affidavit contained presumptively reliable information from a citizen informant, agreed th at probable cause existed for the issua nce of the search warrant and affirmed. See Melson , 638 S.W.2d at 354.

After reviewing the record and applicable author ity, we conclude that

the lower courts erred in determining that the information was provided by a citizen-3-

source and was, therefore, presumptively reliable. We further conclude, however, that when reviewed under the separate standard applicable to confide ntial criminal informants, the affidavit satisfied the two-pronged standard adopted in Jacumin

. Therefore, we conclude that the s earch 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 enf orcement officers received i nformation from a “concerned citi zen” sourc e that methamphetamine was being cooked and stored at a reside nce in Henry Cou nty. Theysought and obtained a search warrant for the residence based on the follow ing affidavit:
An adult concerned citizen source who is believed to be credible an d liable [sic] and who

resides in Henry C

ounty and hasfamily ties to Henry County has told the affiant that they had seen methamphetamine being stored and cooked within 72 hours prior to the swear

in g of this affidavit at the above stated residence. The citizen told the affiant that they had seen several flask [sic], tub es, hot plate [s ic] and several jugs sat [sic] up in the rear room of the residence. The citizen told t he affiant of the cooking process they had seen and the affiant having knowledg e of the cooking process, believed the ci tizen to b e reliable and truthful in their information. The citizen ask[sic] for no payment for their information and acted on civic duty. Bas ed on the above stated information the affiant belie ves that Williams is cooking and stori ng methamphetamine at th e said residen t [si c]. The citizen source was furnished with the finished product of what they

had seen being cooked and immediately turned over to Offic erWyrick and Officer Eaker. The product w as field tested and product was found to be methamphetamine. The affiant askedthat the search warrant be valid up to 48 hours for securing and executi on of the search warrant to

allow D.E.A. participation from ag ents outside the state. As a result of the search, the po lice recovered ove r 64 grams of methamphetamine base in the kitchen, 7.8 grams of methamphetamine powder in the bedroom, 1 gram of 96% pure methamphetami ne powder in the utilit y room, 3 sets of scales, a box contai ning glassware an d tubing, a notebook with instructions on how to manufacture methamphetamine, chemi stry books, $4,900 in cas h, and a2 Although al l three d efendants were pr esent when the i niti al search was execut ed, only Stevens and Williams fil ed a motion to suppr ess to contest

the consti tution alit

y of the search.
3 For the manufacture of a Schedule II controll ed substance, a cl ass C felony, Stevens was sentenced to fi

ve years and Will iams and Brothers t o three ye ars and six months i ncarcerati on in the Tennessee Department of Correction. For possessi on of unlawful drug paraphernal ia, a cl ass 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 f ined $102,500 f or the manufacturi ng and possession convi ctions.

-4- wallet containing $1,100. Additionally, all the chemicals necessary to manufactu re methamphetamine (ephedrine, red phosphor ous, iodine, muriatic acid , and acetone) were found at the residence. The police later obtained a seco nd search warrant to search a storage shed leas ed to defendants Stevens and Williams. In this shed, the police found glassware,tubes, funnels, and over 2,870,000 encased ephedrine tablets.

The defendants 2 moved to suppress the evi dence from the search of the house on the grounds that the affidav it did not establish probabl e cause for the issuance of a search warr ant. The defendants argued that the affidavi t did not establish that the informant w as reliable, that the informant k new what methamphetamine looked like, or that the informant had knowledge of the cooking process. The defendants also arg ued that the informant was not a “ citizen source” because he or she remained unnamed and w as paid $200 as a reward for providing the police department with a “good case.” The trial court overruled the moti ons to suppress.

The jury convicted al l three defendants of manufacturing a Schedu le II controlled substance (methamphetami ne) and possession of unlawful dr ug paraphernalia. 3 On appeal, the Court of Cri minals Appeals concluded that th e information in support of the war rant had been obtained from a “citi zen source” and affirmed the trial court’s deni al of the motion to suppress.-5- We granted this appeal to review whether the lower courts properly determined that the information had been pr ovided by a citiz

en informant and that probable cause had been establish ed for the issuance of the search w arrant.

ANAL YSIS We begin our review by ex amining Article I, § 7 of the Tennessee Constitution which provides:
That the people shall be secure i n their persons, houses, papers an d possessions, f rom unreasonabl e searches and seizures;and that general warrants, whereby an officer may be commande d to se arch suspected places, without evidence of the fact committed, or to seize any person or perso ns no t named, whose offenses are not parti cularly described and supporte d by evid ence, are dangerous to liber ty and ought not be granted.
Tenn. Const. art. I, § 7. Likew ise, the Fourth Amendment of the United States Constitution states: The right of the people to be secure in their persons, house s, papers, and effects, against unreasonable sea rches and seizures, sh all not be violated, and no warr

ants shall issue, but upon pr obable 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 sear ch warrant shall be i ssued only on the basis of an affidavit, sworn before a “ne utral and detached” magistr ate, which establishes probable cause for its issuanc e. 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, generall

y, reasonable grounds for suspicion, supported by circumstances indicative of an illeg al act. State v. Johnson , 854 S.W.2d 897, 899 (Tenn. Crim. App. 1993). Thus, the need for the magi strate to make a neutral and detac hed4 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 Spinell i v. Uni ted 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 whi ch contains i nformation fr om a confidential

informant must contai n facts demonstrati ng 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 t he Supreme Court later abandoned this analysi s in favor of a total ity of circumstances approa ch, Ill inois v.Gates , 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 , 76 L. Ed. 2d 527 (1983), this Court has retaine d 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- decision regarding the existence of probable cause requires that the aff idavit contain more than mere conclusory a llegations by the affiant. Moon , 841 S.W.2d at 338.

In determining the reliability of information contained in an a ffidavit in support of a search warrant, there is a significant disti nction between a “citiz en informant,” or bystander witnesses, and “criminal informants,” or those from a “criminal milieu.” Melson , 638 S.W.2d at 354. Inf ormation 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 cr edibility of the informant or the reliability of the i nformation. Although the name of the citiz en informant does not have to be dis closed, “the reliability of the sour

ce and the information must be judged from all of the circumstances and from the entirety of the af fidavit.” Melson , 638 S.W.2d at 356.

Conversely, if the so urce is a criminal infor mant, the determination of reliability must be ba

sed 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 establis hing the informant’s credibi lity or (2)(b) a basis establishing that the informant’s informatio n is reliable.” State v. Cauley , 863 S.W.2d 411, 417 (Tenn. 1993) (citation omitted).Probable cause may not be-7-

found until both prongs are inde pendently considered and sati sfied. State v. Ballard , 836 S.W.2d 560, 562 (Tenn. 1992).
The rationale for distinguis hing between citiz en informants and confidential criminal informants has been sta ted as follows:
Information supplied to officers by the traditional police i nformer is not given in the spirit of a concerned citi zen, 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 ce rtain impression of unreli ability, and it is pr oper to demand that som e evidenc e of the ir credibi lity and re liability b e shown . . . . However, a n ordinary citiz en who reports a crime w hich has been committed in his presence, or that a crime is being or will be committed, stands on much different gr ound than a police informer. He is a witness to c riminal activity who acts with an i ntent to aid the police in law enforcement because of his concern fo r society or for his own safety. He doe s not expect any gain or concession in e xchange for his in format ion. An in former o f this typ e usually wo uld not h ave more than one opportunity to su pply information to the polic e, thereby precluding proof of his reli ability by pointin g to previous accura te information which he has suppl ied . . . .

State v. Smith , 867 S.W.2d 343, 347 (Tenn. Crim. App. 1993) (emphasi s 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 r eview in suppressi on cases is the preponderance of the evidence standard). T he affidavit contained only conclusory allegati ons that the informant was a “c oncerned citizen sourc e,” “acted on civic duty,” and

“ask [sic] for no payment for their information.” There is no explanation as to why

the citizen was i n the house while methamphetamine w as being cooked and/or why the “citizen” w

as “furnished with the fini shed product.” The police did explain w

hy the citizen w

as later paid $200. It w as a reward for a good5 The defendants’ main contenti on is that the Melson standard does not apply t o this case because the “concerne d citi zen source” was pai d. The fact of payment to a ci tizen i n exchange for information does not alway s make the Melson standard i napplicabl e. There is a l ogical di stincti on between one who receives payment at or near the ti me the information is provi ded and one who receiv es paym ent or rew ard only afte r the truth of the inform ation has been ve rified. See People v. St evens , 423 N.E.2d 1340 (Ill. 1981). -8- case. 5 The unexplained circumstan ces warrant caution i n determining whether the informant is a presumptively reliable citizen. As Professor LaFave has ex plained:

[ A]s a general propositi on it is an informant from the cri minal milieu rather than a law-abidi ng citizen who i s most likely to be pr esent under such circumstances . This is not to sugges t that a person giving informa tion abo ut the loc ation of narcotic s may never qualify as a citizen-informer, for it

is sometimes possible to sh ow with particul arity how a law-abiding

individual happened to come upon such knowledge. Rather, the point is that i n such a case it should not be d eemed sufficient that the police have alleged in a rather conclusory fashion that the person was “an i ndividual who is nei ther a paid nor habitual informant,” “a responsible citizen of utmost character and integrity” or “a reputable member of the community.” Perhaps a m ore particularized show

ing 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 cr iminal 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.” Accordin gly, the af fidavit d oes not e stablish that the informa tion was pr ovided by a citizen informant, nor does it warrant a presumpti on of reliability as the lower courts concluded.

Having concluded that the Melson standard does not apply to th is case, we turn to the question of whether the affidavit is nonethele ss sufficient because it satisfies the two-prongs of the Jacumin test. With regard to the informant’s basi s of-9-

knowledge, the affidavit sufficiently establi shed that the informant had witnes sed 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 i s supported in this case by the informant seeing ‘marij uana being used and/or distributed’ at the defendant’s residence”). With regard to the reliability of the informant, the affidavit states onl y that the “citizen” was “believed t o be credible and [re]liable.” Although this asserti on alone is insufficient to establ ish the veracity of the informant, see State v. Valentine , 911 S.W.2d 328, 33 0 (Tenn. 1995), the statements indicating that a positi ve field test was perfor med on the “finished product” in the informant’s pos session sufficiently demonstr ated 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 rel iable); see also LaFave, supra , § 3.3(f ). Thus, we conclude that the affidavit sati sfied both prongs of the Jacumin test and supported a finding of probable cause for the is suance of the search warrant

.

CONCLUSION We conclude that the affidavit in this case cont ained sufficient information for the issuing magistrat

e to find probable cause for the iss uance of a search warrant. Although the lower cour ts erroneously determine d that the informant was a “ci tizen source” and applied the Melson standard, our review indicates that the affidavit satisfied the two-prong test governing confidential informants as set fo rth in Jacumin . Therefore, the Court of Criminal Appeals’ judgment is affirmed on the separate grounds stated. The costs of this cause are taxed to th e defendantsappellants.

__________________________________ RILEY ANDERSON, CHIEFJUSTICE-10-

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