FILED

August 4, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9805-CC-00154

)

Appellee, )

)

) WEAKLEY COUNTY

VS. )

) HON. WILLIAM B. ACREE

JAMES NORMAN USERY, ) JUDGE

)

Appellant. ) (Certified Question—Search Warrant)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF WEAKLEY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

GARRY BROWN JOHN KNOX WALKUP

P.O. Box 505 Attorney General and Reporter

Milan, TN 38358

PETER M. COUGHLAN

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

THOMAS A. THOMAS

District Attorney General

ALLEN STRAWBRIDGE

Assistant District Attorney General

P.O. Box 218

Union City, TN 38261

OPINION ON REMAND FILED ________________________

REVERSED; CONVICTION VACATED

DAVID H. WELLES, JUDGE
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OPINION ON REMAND

This certified question of law was remanded to us by the Tennessee

Supreme Court for reconsideration in light of its opinion in State v. Stevens, 989

S.W.2d 290 (Tenn. 1999), clarifying when the presumption of reliability may be

triggered by an affidavit pledging information gathered from a “citizen informant.”

Upon review of the court’s decision in Stevens, we modify our opinion to reflect

our decision that the affidavit sworn in this case fails to meet the standard to

realize a presumption of reliability. Therefore, we reverse the order of the trial

court overruling the motion to suppress, vacate the Defendant’s conviction, and

dismiss this case.

In the original opinion of this Court, penned by former Judge Paul G.

Summers, we upheld the validity of the search based upon information provided

in the affidavit sworn by Lieutenant Joey Radford of the Greenfield Police

Department. That affidavit recounted,

A citizen informant has been in the residence in the past 72 hours

and has directly witnessed white powder substance, green plant

material, paraphernalia, weapons, and contraband associated with

the use of controlled substances. This citizen informant is familiar

with controlled substances.

In addition, Radford checked a box next to the language, “The affiant has

received information from a reliable citizen informant.”

In Tennessee, when an affidavit sworn to procure a search warrant is

supported by information provided by a confidential informant, a finding of

probable cause requires a factual showing of (1) the basis of knowledge of the
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informant, and (2) the reliability or veracity of the inform ation or the informant.

See State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989) (adopting the former federal

jurisprudence of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United

States, 393 U.S. 410 (1969)). However, the law of our state recognizes a

distinction between information provided by citizen informants and by the type of

professional, compensated informant from the “criminal milieu”—presuming the

former information inherently reliable. State v. Melson, 638 S.W.2d 342 (Tenn.

1982). To be entitled to this presumption of a heightened degree of reliability, the

face of the affidavit must demonstrate that the informant is not a “crim inal”

informant, but rather a concerned citizen. 

Relying on Melson and its progeny, we affirmed the existence of probable

cause sufficient to support the warrant in this case. See State v. James Norman

Usery, No. 02C01-9805-CC-00154, 1998 W L 832354 (Tenn. Crim. App.,

Jackson, Dec. 2, 1998). However, in light of the Tennessee Supreme Court’s

opinion in State v. Stevens, 989 S.W.2d 290 (Tenn. 1999), we conclude that the

affidavit does not establish probable cause due to its failure to satisfy the second

Jacumin prong, veracity or reliability of the informant or the information.

In Stevens, officers obtained a search warrant based upon the following

attested information:

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
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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 [sic] information. The

citizen ask [sic] for no payment for their [sic]

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 [sic]

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.

Stevens, 989 S.W.2d at 292 (quoting the affidavit). The supreme court found this

language insufficient to trigger the Melson presumption of reliability, noting that

“[t]he 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 [sic] information.’” Id. at 294. Furtherm ore, stated the court, “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 unexplained circumstances warrant caution in determining whether the

informant is a presumptively reliable citizen.” Id. 

Regarding an informant who is present while narcotics are being

manufactured or packaged, for example, the Stevens court relied on the following

passage from Professor LaFave:

[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
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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. 

Id. at 294-95 (quoting Wayne R. LaFave, 2 Search and Seizure § 3.4(a) (3d ed.

1996) (first emphasis added in Stevens) (second emphasis in original) (footnotes

omitted in Stevens). After deciding that the Melson standard did not apply, the

supreme court held that under a traditional Jacumin standard, the affidavit was

sufficiently reliable to establish probable cause to support the search warrant in

that case. Id. at 295. The court based its finding of reliability on the allegation

that a positive field test was performed on the narcotics given to the informant.

Id. 

In the case at bar, the information indicating that the informant was a

“citizen-informant” does not meet the standard for a presumption of reliability

according to Stevens. Lieutenant Radford provided no more than conclusory

allegations that the information was furnished by a “citizen-informant known to

the affiant.” In addition, the lieutenant gave no explanation why the informant had

been present in Defendant’s residence and privy to the exis tence of white

powder, drug paraphernalia, green plant material, weapons, and contraband

associated with controlled substances.

Furthermore, resorting to a traditional Jacumin analysis of veracity or

reliability, we find no allegation similar to that made in Stevens which would

factually indicate the reliability of the informant or the information. The veracity
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prong therefore has not been satisfied; and the search warrant issued in this

case, pursuant to which the principal evidence in this case was seized, was not

supported by probable cause.

Therefore, we must reverse the order of the trial court overruling the motion

to suppress. We vacate the Defendant’s conviction and remand this case to the

trial court for dismissal of the indictment based upon lack of probable cause to

support the search warrant. 

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

(Not Participating)____________________

PAUL G. SUMMERS, JUDGE

___________________________________

JOE G. RILEY, JUDGE