# FILED
March 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 02C01-9701-CC-00039 Appellee ) ) HAYWOOD COUNTY vs. ) ) Hon. Dick Jerman, Jr., Judge JOE TYUS, ) ) (Possession of Schedule II Appellant ) and Schedule VI contro lled ) substances with the intent ) to sell) For the Appellant : For the Appellee : William D. Bowen Charles W. Burson Asst. Public Defender Attorney General and Repor ter 107 South Court Square Trenton, TN 38382 Deborah A. Tu llis Assistant Attorney Gener al Criminal Justice Div

ision Tom W. Crider 450 James Robertson Parkwa y District Public Defender Nashville, TN 37243-0493 Clayburn L. Peep les District Attorney General 109 East First Street Trenton, TN 38382

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The appellant additi onally

argues that the affi davit used t o obtain t he search warrant was insuffi cient because i t did not state wheth er the in formant was a confiden tialinformant or a citi zen source. This i ssue was not incl uded withi n the appell ant’s cert ified question of law and, t herefore, is out side the s cop e of th is Ru le 37( b)(2 )(i) ap pea l. Acc ordin gly, we declin e rev iew a s this issue is not prop erly before th is court. 2 O P I N I O N

The appellant, Joe Tyus, appeals from convictions enter ed by the Haywood County Circuit Court for felony possessions of Schedule II and Schedule VI controlled substances with the intent to sell . On September 10, 1996, the appellant pled guilty to both offenses, reserving the r ight under Tenn. R. Crim. P. 37(b)(2)(i) to appeal the following certified q uestions of law to this co urt: (1) Wheth e r the trial court err ed in denying the appellant’s motion to reveal the identity of the confidential informant; and (2) Whether the aff idavit was sufficient to support the iss ua nce of a search warra nt under

the two-prong

test of Aquilar - Spinelli

. 1 After review, we affirm the trial court’s judg ment.

I. Identity of the Confidential Informant The appellant first argues that the trial court erred i n denying his motion to reveal the identity

of the confidential informant relied u pon by Deputy Blackwell in his affidavit used to support the issuance of the warrant to search the appellant’s residence. He contends that disclosure was essential in order that theinforma nt’s “verac ity, credib ility, and/or reliability could be further challenged and tested.”

Before ad dressing the merits of any certified question, a reviewing court must determine whether the certified q uestion of law reserv ed for appeal is dispositive of the defendant’s case as required by Rule 37(b)(2). See State v. Preston , 759 S.W.2d 647, 650 (Tenn. 1988); see also State v. Gambrell , No. 01C01-9603-CR-00 123 (Tenn. Cr im. App. at Nash ville , May 7, 1997). We find that this particular issue concerning the informant’s identity is not dispos itive of the appellant’s c ase. An i ssue is dispos itive when the appellate court must either affirm the judgm ent or reverse and dismiss solely3

upon the determination of the certified question presented. See State v. Wilkes , 684 S. W. 2d 663, 667 (Tenn. Crim. App. 1984). In this case, even if we re versed an d dismissed the trial cour t’s ruling a nd ordere d divulgen ce of the informa nt’s iden tity, that fact w ould not, per se, result in a termin ation of the c riminal proceed ings

. Notwithstanding

the non-dispositive natu re of the appellant’s assertion,we elect to review this iss ue.
The appellant, relying u pon Roviaro v. U.S. , 353 U.S. 53, 60-61, 77 S.Ct. 623, 628 (1957), argues that, if the disclosure of an informer’s i dentity “is relev an t a nd helpful to the defense of an accused” or is “ essential to a fair determinati on of a cause,” the identity must be divul ged. The appellant ’s rel iance upon Roviaro is misplaced. First, disclosure of the

informant’s identity

in Roviaro occurred within the c ontext of the actual trial. In permitting police officer s to withhold an informant’s identity, the United States Supreme Court has clearly articulated th e distinction between a preliminary criminal proceeding, where for ex ample the question is that of pr obable cause for the issuance of a w arrant, as opposed to trial where the issue of guil t or innocence is at stake. United States v. Raddatz , 447 U.S. 667, 679, 100 S.Ct. 2406 , 2414 (1980) ; McCray v. Illinois , 386 U.S. 300, 305, 87 S.Ct. 1056, 1059 (1967). See also Rugendorf
v. United States , 376 U.S. 528, 533, 84 S .Ct. 825, 828 (196 4). Thus , the rule follows that the name of the informant need not be disclos ed at the suppression hearing “if the trial judge is convin ced , by evidence submitted in open court and subject to crossexamination, that the officers did rely in good faith upon credible i nformation supplied by a reliable informant.” McCray v. Illinoisat 305, 87 S.Ct. at 1059. See also Aguilar
v. Texas , 378 U.S. 108, 114, 84 S.Ct. 1509, 1514 (1964). Second, the appellant’s request fordisclosure of the informant’s identity in this case is sought not because it “is essential to a fair determination of a cause” or because it is relev

ant to his defense , but rather, as he states, to test the informant’s credibilit y.4 C learly, under these circumstances and for all of the fo regoing reaso ns, th e appellant’s motion to reve al the identity of the informant i s without merit.

II. Sufficiency of the Affidavit Support ing the Search Warrant The appellant’s secondissue concerns the validity of the sear ch warrant used to search hi s residen ce. Speci fically, the ap pellant contends that the affidavit supporting the issuance of th e se arch warrant is ins ufficient because it fails both the veracity and “basis of knowledge” prongs of th e Aguilar-Spinelli test. See Aquilar v. Texas , 378 U.S. at 108, 84 S.Ct. at 1509; Spinelli v. United St ates , 393 U.S. 410, 89 S.Ct. 584 (1969); State v. Jacumin , 778 S.W.2d 430, 432-36 (Tenn. 1989). The trial court found that the affidavit underlying the searc h warrant was sufficie nt and denied the appellant ’s motion to sup press. The app ellant contest s this finding.
Initially, we note

that a trial court’s findings of fact on a motion to suppress are conclusi ve on appeal unless the evidence preponderates against those findings. State
v. Woods , 806 S.W.2d 205, 20 8 (Tenn. Crim . App. 1990) , perm. to appeal denied , (Tenn. 1991). In the pre sent case , we agree wit h the tria l court’s f indings. Further, we agree with the court’s application of the law to those facts.
The affidavit in question states , in pertinent part: That I have received information from an informant who has gi ven information in the past that has led to drug arrests and convictions

said informant has seen marijuana and cocaine at the r esidence of Joe Tyus within the past 72 hours

An affidavit is an indispensabl e p rerequis ite to the issuance of any search warrant. Tenn. Code Ann. § 40-6-103 (1990). Before a search warrant may issue,an affidavit must set forth, on its face, facts that est ablish probable cause. Tenn. Co de Ann. § 40-6-104 (1990). Probable cause has generally been defined as a reasonable ground for suspicion, supported by circ umstance s indicative of an illegal act. Tenn.5

Code Ann. § 40-6-104; State v. Johnson , 854 S.W.2d 897, 899 (Tenn. Crim. App. 1993). Probable c ause to support the issuance of a w arrant must appear in the affidavit, and judicial review of the exis tence of probable cause will not include looking to other evidence provi ded to or known by

the issuing magistr

ate or possessed by the affiant. State v. Moon , 841 S.W.2d 336, 33 8 (Tenn. Crim. App. 1992).

In the present case, the

information in the affidavit w as supplied by a confidential
source. In such cases, the adequacy of the affidavit is subject to the s tringent AquilarSpinelli test: (1) whether the affidavit includes a fact ual all egation that the informant is credible or the informati on is reliable; and (2) whether

the affidavit contains the basis of the informant’s knowledge. Jacumin , 778 S.W.2d at 432-36. Again, the appellant contends that the aff idavit fails to satisfy either prong

of the Aguilar-Spinelli test. We disagree.
Generally, proof of the

informant’s past performances for or information to law enforcement is sufficient to satisfy the veracity prong, i.e., the informant’s credibility or reliabil ity. See State v. Udzinski , No. 01C01-9212-CC-00380 ( Tenn. Crim. App. at Nashville, Nov. 18, 1993); see also State v. L owe , 949 S.W.2d 300, 305 (Tenn . Crim. App. 1996), perm. to appeal denied , (Tenn. 1997). For example,data or information regarding the number of occasions that the informant’s previous information has led to convictions

supports the conclusion that the in forman t was correct and ther efore, reliable. Lowe , 949 S.W .2d at 305 (citin g Udzinski , No. 01 C01-9212-CC-00380). Further, an affidavit which sets for th the types of evidence or contraband towhich the informant’s tips have led the authorities is also looked upon fav orably. I d . Cle arly, under these standards, the affidavit, indicating the infor mant’s prior assistance in securing convic ti ons for drug offenses, is sufficient to est ablish the reliability of his information.6 Next, under the basis of knowledge prong, the affidav it must reveal sufficient facts which permit the m agistrate to determine w hether the informant has a basis for his information or claim rega rding cr iminal conduct. See Moon , 841 S.W.2d at 338. In other words, the affidavit must describethe manner in which the informant gather ed the information, or the affidavit must describe the criminal activity of the suspects with detail. See, e.g. , Earls v. State , 496 S.W.2d 464 (Tenn. 1973); State v. Smith , 477 S.W.2d 6 (Tenn. 1972); State v. Vela , 6 45 S. W.2d 765 (Tenn. Crim. Ap p. 1982). Information that the co nf idential informant had, with in the last 72 hours, seen il legal drugs at the appellant’s residence is sufficient to satisfy the basis of knowledge prong of Aguilar-Spinelli

. See, e.g. , State v. L ove , No. 03C01-9 406-CR-002 05 (Tenn. Cri m. App. at Knoxville, F

eb. 18, 1997). This issue is without merit.
Accordingly, the j udgment of the trial court is affirmed.

_________

____________________ ____________

_ DAVID G. HAYES, Jud ge

CONCUR:

________________________________ JOE B. JONES, Pres iding Judge

________________________________ JOE G. RILEY, Judge