# FILED August 4, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON SEPTEMBE R SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9805- CC-00154 ) Appellee, ) ) ) WEAKLEY COUNTY VS. ) ) HON. WILLIA M B. ACREE JAMES NORMAN USERY, ) JUDGE ) Appe llant. ) (Certified Q uestion— Search Wa rrant)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUI T COURT OF WEAKLEY COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : GARRY BROWN JOHN KNOX WALKUP P.O. Box 505 Attorney Generaland Reporter Milan, TN 38358 PETER M. COUGHLAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 THOMAS A. THOMAS Distri ct Attorney General ALLEN S TRAWBRIDGE Assistant Distri ct Attorney General P.O. Box 218 Union City, TN 38261

OPINION ON REMA ND FILED ________________________ REVERSED; CONVICTI ON VACATED DAVID H. WELLES , JUD GE-2-



# OPINION ON REMAND

This certifi ed question of law was r e manded to us by the Tennessee Supr eme Court for r

econsiderat ion in l ight of its opini on in State v. Stevens , 989 S.W.2d 290 (Tenn. 1999), cl arify ing when the presumpti on of reli abilit y may be trigger ed by an affidav it pledg ing informa tion gathe red from a “citizen info rmant.” Upo n revie w of the court’s decision i n Stevens , we modify our opinion to reflect
our decision that the af fidavit sworn in this ca se fails to me et the stan dard to realize a presu mption of reliability. The refore, we reverse th e order o f t he trial court overrul ing the mo tion to suppress, vacate the Defendant’s convi ction, a nd dismiss thi s case.

In the origi nal opini on of this Court, penne d by former Judg e PaulG. Summers, we upheld thevalidity of the searc h based upon information provi ded in the affid avit sworn by Lieutenant Joey Radford of t he Greenfield Police Department. That af

fidavi t recounted, A citi zen inform ant has bee n in the residenc e in the past 72 h ours and has dire ctly wi tnessed white powder substance, green plant mate rial, paraphernali a, weapons, and cont raband associa ted with the use of

controll ed substances. Thi s citi zen informant i s famili ar with controll ed substances. In additio n, Rad f ord checked a box nex t to the l anguage, “The aff iant has received informa tion from a reliable citize n inform ant.”

In Tennessee, wh en an a ffi davit sw orn to p rocure a sea rch wa rrant is supported by information provi ded by a confi dential informant, a f ind ing of prob able cause requires a factualshowing of ( 1) the basi s of knowledge of th e-3-

informa nt, and (2) the r eliabi lity or verac ity of the inform ation or the informa nt. See State v. Jacu min , 778 S.W.2d 430 (Tenn. 1989) (adopting theformer feder al jurisprudence of Aguilar v . Texas , 378 U.S . 1 08 (1964), and Spinelliv. United States , 393 U.S. 410 (196 9) ). However, the law of our state recognizes a distin ction between information provi ded by citi zen informants and by the type of profes siona l, compensated informant from the “criminalmilieu”—presuming t he formerinforma tion inhere ntly reliable. State v. Melson , 638 S.W.2d 342 (Tenn. 1982). To be entitled to this presum ption of a heightened degree of reli abilit y, the face of the affida vit must d emo nstrate that the inform ant is n ot a “crim inal” informa nt, but rathe r a conce rned citize n.
Relying on Melson and its proge ny, we affirme d the e xistenc e of pro bable
cause sufficient to s upport th e warran t in this case
. See State v. James Norman Usery , No. 02C01-9805-CC-00154 , 1 998 W L 8323 54 (Te nn. Crim . App., Jackson, Dec. 2, 1 998). Ho wever, in ligh t of th e Tenne ssee Supr eme Cour t’s opinion in State v. Stevens , 989 S.W.2d 290 (Tenn. 1999), we conclude that the affidav it does n ot establish probab le cause due to its failure to satisf y the second Jacu min prong, ver

acity or reliabi lity

of the i nformant or t he informati on.

In Stevens , offi cers obtai ned a search warrant based upon the fol lowing attested i nformation:

An adult c once rned c itizen so urce w ho is believed to be credible and liabl e [sic] and who resides in Henry Co unty and ha s family ties to Henry C ou nty has told the a ffiant that they

had see n methamphetamine being stored and cooked withi n 72 hours prior to the swearing of this affidav it at the above stated residenc e. The citizen to ld the affi ant that t hey had seen se veral flask [sic ], tubes, hot plate[sic]and several jugs sat [sic] up i n the r ear roo m of the-4- re sidence. The citiz en told th e affiant of the coo kin g process they had seen and the affi ant having knowledge of the cooking process, believed t he citi zen to be reliabl e and truthf ul in t heir [si c] information. The citiz en ask [sic] for n o paym ent f or their [si c] informati on and acted o n civic duty. Based on t he above stated i nformation t he affiant believest hat Williams is cookingan d storing met hamphetamine at t he s aid resid ent [sic ]. The cit izen source was furnishedwith the finished p r oduct of what they [si c] had seen being cook ed an d imm ediate ly turned o ver to Officer Wyrick and Of

ficer Eaker . The product was field tes ted and product was found to be methamphetamine. The affiant asked that t he search warrantbe valid upto 48 hour s for securi ng and execu tio n of th e searc h warrant to all ow D.E. A. partici pation fr

om agents outside t he state. Stevens , 989 S.W .2d at 292 (qu oting the affidavit). The su preme co urt found this language insuf

ficien t to tri gger the Melson presumption of reliabi lity , noting t hat “[t] he affidavit c ontain ed on ly concl usory allegati ons that the informant was a ‘concerned citi zen source,’‘acted on civic duty,’and ‘ask [si c] for no payment for their [sic] information.’” Id. at 294. Furtherm o re, stated the court, “There is no explanati on as to why the c itizen was in the house whi le methamphetamine was being cooked and/or why the cit izen was ‘fu rnishe d with th e finish ed pro duct.’ .

. . The une xplained ci rcumstances warrant caution i n determining whether the informant is a pre sumptively reliable citizen .” Id.
Regarding an informant who is present while na rc otics arebeing manufactured or packaged, for example, t he Stevens court rel ied on the fol lowing passage from Profess or LaFave:

[A]s a ge neral p rop osi ti on i t i s an inf orma nt fro m the criminal milieu r

atherthan a law ab iding c itizen w ho is most likely to be present under such ci rcu mstances. This is not to suggestthat a perso n giving i nformation about the location of narco tics may neverqualify as a citizen-informer, forit is sometimes possibl e to show with parti cularity how al aw-abiding i ndividual-5- happened to comeupon such knowledge. Rather, th e pointis that

in such a case it shoul d not be deemed suffic ientthat the po lice have alleged i n a rather conclusory fashion t hat the person was “an indi vidual who is neit her a paid nor habitual inform ant,” “a respo nsible citi zen of utmost char acter and integrity” or “a rep uta blememb er of t he community.” Perhaps a more particul arized showing of the law-abiding n ature of the per son su pplying the informa tion will suffice. Id. at 294-95 (quot ing Wayne R. LaFave, 2 Search an d Seizure § 3.4(a) ( 3d ed. 1996) (fir

st emphasis added i n Stevens ) (seco nd em phas is in orig inal) (footnotes omitted in Stevens ). After decidi ng that the Melson standard di d not apply, t he supr eme court h eld that under a tradition al Jacu min standard, t he affidav it was sufficie ntly reliable to esta blish p robab le cau se to s uppo rt the se arch w arran t in thatc ase. Id
. at 295. The court based its f inding of

reliabi lity

on the all egation thata positive field test was p erforme d on the narcotics given to th e inform ant. Id.

I n the case at bar , the inf ormation indi cating t hat the in forman t was a “citizen-infor mant” does not meet the st andard for a pr

esumption of reliabi lit y according to Stevens . Lieu t enant Ra dford provided n o more tha n concluso ry allegati ons that t he informa tion was fu rnished by a “citizen -informa nt know n to the affiant .” In addition, t he lieutenant gave no explanat ion why the inf ormant had been present in Defendant’s r esidence and privy to the exis tence o f white powder, dru g paraphernali a, green plant material, weapons, and contr aband associated with control led substances.
Furthermore, resortin g to a tra ditiona l Jacu min analysis of veraci ty or reliability, we find no alle gation simila r to that m ade in Stevens which would factually ind icate the reli abilit y ofthe inform ant or the informa tion. The veracity-6-

prong therefor

e has not been sati sfied; a nd t he sear ch wa rrant iss ued in this case, pursuant to which the pri ncipal evidence i n this case was seized, wasnot supported by pr

obable cause.
Therefore, we must reverse t he order of t he trialcourt over ruling t he motion to suppress. We vacate t he Defendant’s convicti on and remand this case to the trialcou rt f or dism issal of the in dictme nt base d upon lack of pro bable ca use to suppo rt the searc h warran t.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:
(Not Parti cipati ng)

____________________ PAUL G. SUMMERS, JUDGE

___________________________________ JOE G. RILE Y, J UDGE