# FILED November 6, 1995 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE ) FOR PUBLICATION ) ) FILED: NOVEMBER 6, 1995 Appellee ) ) HENRY COUNTY VS. ) ) HON. JULIAN P. GUINN, GREGORY ADAMS VALENTINE ) JUDGE ) Appellant ) NO. 02-S-01-9410-CC-00070

For Appellant: For Appellee: W. Jeffery Fagan Charles W. Burson Camden, TN Attorney General and Reporter Eugene J. Honea Assistant Attorney General Nashville, TN G. Robert Radford District Attorney General Vicki S. Snyder Assistant District Attorney Huntingdon, TN

OPINION2

CONVICTIONS REVERSED AND INDICTMENT DISMISSED BIRCH, J.1 Tenn. Code Ann. § 39-17-417(a). 3 GregoryAdams Valentine was convicted by a jur y of unlawful posse ssion of a Schedule VI substance with intent to manufacture, deliver, or sell (a Class E felony) and unlawful posses sion o f drug paraphernalia (a Class A misdemeanor). 1 We granted his application for review pursuant to Rule 11, Tenn. R. Crim. P., in order to determine whether his testimony fulfilled the requirements of Rule 41(g), Tenn. R. Crim. P., thereby preserving his right to ch alleng e, on appeal, the admission of illegally obtained evidence.

For the reasons herein stated, we find that Valentine met the requirements of Rule 41(g) and i s, the refore, entitled to persist, on appeal, in his challenge to the admission of such evidence. Further, Valentine here insists that the conv icting evidence introduced against him was insufficient to support the convictions. We agree and find that the legally gathered evidence is, indeed, insufficient to support the convictions. Accordingly, the convictions are reversed, and the indictment is dismissed.

I

The record indicates that on December 27, 1991, the 24th Judicial District Task Force sent a confidential informant wearing
a concealed recording device to conduc t a drug transaction with Valentine. The effort was successful; Valentine sold a quantity of4

marijuana t o the info rmant. As a result of the purchase, Henry CountyDeputy Sheriff Stephen Page submitted an affidavit to a magistrate supporting his application for the issuance of a warrant t o search Valentine's Springhill Road residence, including "all the buildings, vehicles and outhouses" on the property. The affidavit stated:

The affiant's belief is based upon

information which he has received froma reputable and reliable person, whose name and identity has been disclosed to the undersigned Judge of Henry County, Tennessee, [the magistrate signed his name here] which said information is as follows: a confidential informant who knows what marihuana looks like and who has bought marihuana from Valentine at the above location and has seen cocaine at the above location and knows that Valentine has had said marihuana and cocaine a t the above location within the last 5 days.
The magistrate issued the warrant. Discovered and seized i n the search were approximately thirty-seven marij uana plants growing in the attic o f a bu ilding located behind Valentine's resid ence . Officers also found planters, fertilizer for the plants, utensils for wa tering the plants, and a lighting system that included a device for transversing the lights to equalize exposure upon each plant. Along with the plants and equipment, officers seized several photograp hs o f marijuana crops Valentine5

had g rown ov er the years. The director of the task force videotaped the search.

I I

Valentine filed a pretrial motion to suppress the seized evidence. He alleged that Page's affidavit did "not reflect an adequate basis for the 'reliability' of the confidential informant and [did] not contain sufficient infor mation as to how the confidential informant knew the defendant had marijuana and cocaine a t the address to be searched." The trial court denied the motion without making findings of fact or conclusions of law.

I n a jury trial on November 19, 1992, the State presented evidence of the purchase, the application for the search warrant, t h e search, the location of the marijuana, the plant s, th e photographs, a videotape, and miscellaneous drug paraphernalia. Valentine persisted in his objection to the evidence; ultimately, h e testified in his own defense. As stated, the jury found him guiltyof the Class E felony of possession of marijuana with intent t o manufacture, deliver, or sell and the Class A misdemeanor of unlawful possession of drug paraphernalia.

O n appeal to the intermediate court Valentine raised four issues. He relied principally upon his contention that the trial court erred in refusing to suppress the evidence seized pursuant to2 Two search warrants were issued in this case. The second one

authorized a search of a duplex owned by Valentine, located at 203 and 203B Lydia Street, Paris, Henry County, Tennessee. Valentine filed a motion to suppress the evidence seized under both search warrants. As to the second warrant, here described, the trial judge granted the motion on the grounds that there was no showing o f the basis for reliability and an incorrect description of the place to be searched. The affidavit in suppo rt of the second searchwarrant used the same language regardin g the informant as the first search warrant now on appeal.

3 378 U.S. 108 (1964).
4 393 U.S. 401 (1969). 6 one of the two search warrants issued. 2 Addressing this issue, the appellate court found that the questioned evidence had, indeed, been illegally obtained and that the trial court was in error for having refused to suppress it. This finding notwithstanding, the court concluded that Valentine had waived this issue by having failed, in his testimony at trial, to give the seized evidence an "innocent or mitigating cast." This "cast" is required in order for a defendant to preserve the right to object to the admissibility of the evidence. Tenn. R. Crim. P. 41(g). Finding the evidence of guilt sufficient, the intermediate court affirmed the convictions.

III

I n order for a search warrant to meet constitutional requirements under Article I, Section 7, of the Tennessee Constitution, the warrant must comply with the two-pronged standard voiced in Aguilar v. Texas 3 and Spinelli v. United States . 4 State7

v . Jacumin , 778 S.W.2d 430 (Tenn. 1989). The two prongs of the Aguilar

- Spinelli test are usually referred to as the "basis of know ledge" prong and the "veracity" prong. The United States Supreme Court described the test as follows:

Althoughan affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some o f the underlying circumstances from whichthe informant concluded that the narcotics were where he claimed theywere, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was "credible" or his information "reliable." Otherwise, "the inferences from the facts which lead to the complaint" will be drawn not "by a neutral and detached magistrate," as the Constitution requires, but instead, by a police officer "engaged in the often competitive enterprise of ferreting out crime," or, as in this case, by an unidentified informant. Aguilar , 378 U.S. at 114-15 (citations omitted).

As found by the Court of Criminal Appeals, the language "who knows what marihuana looks like and who has bought marihuana fromValentine at the above location and has s een c ocaine at the above location" is sufficient to satisfy the "basis of knowledge" prong of Jacumin . State v. Moon , 841 S.W.2d 336, 339 (Tenn. Crim. App. 1992) (hol ding that the "basis of knowledge" prong was satisfied by the language "informant . . . had personally seen marijuana being used and/or distributed").8 The affidavit, however, fails to satisfy the "veracity" prong of Jacumin . It referred to the informant as "a reputable and reliable person." This conclusory statement provided no facts upon which"the magistrate [could] deter min e either the inherent credibilityof the informant or the reliability of his information
o n the particular occasion." Moon , 841 S.W.2d at 338 (citations omitted).

Thus, the affidavit failed to satisfy the constitutional requirements of Arti cle 1, Section 7, of the Tennessee Constit ution. We must find that the search warrant was improvidentlyissued bythe magistrate. Accordingly, we agree with the intermediate court's view that the trial court erred in its refusal to grant Valentine's motion to suppress the evidence seized under the search warrant.

Even though the trial court erred in permitting the illegallyobtained evidence to be introduced against Valentine, his standing to raise the issue on appeal depends upon his compliance with Rule 41(g), which provides:

I f inadmissible evidence obtained by a n illegal search or seizure is erroneouslypermitted to be introduced against a defendant, and i fthe defendant subseq uently testifiesas to the same evidence but gives it an innocentor mitigating

cast as to the charg e against him and denies the c harge, suchtestimony of the def endant5 393 S.W.2d 288 (1965), cert. denied , 383 U.S. 952 (1966). 9 shall not be dee med to be a waiver o fhis right to object to the admissibility of such evidence. Tenn. R. Crim. P. 41(g) (emphasis added).

Valentine insists that he complied with the requirements o f Rule 41(g); consequently, we begin with an examination of the rationale for the Rule. The Comments of the Advisory Commission indicate th at "[t]he provision of subsection (g) is designed to change the rule of Lester v. State , 216 Tenn. 615, 393 S.W.2d 288 (1975)[sic], which often cau sed a defendant to waive one [constitutional] right by exercising another." Tenn. R. Crim. P. 41 (Advisory Commission Comments).

I n Lester v. State , 5 a male assailant followed a woman to her home, where he beat her, cut her, and attempted to abduct her. During the struggle, she pulled several buttons from the sleeve of his coat. The investigation led authorities to Lester. They went t o his residence without a warrant in an attempt to match the buttons recovered at the scene with those on one of his coats. AlthoughLester was not home when the police arrived, they were admitted by his wife. She complied with their request to produce
one of Lester's coats for their examination. They seized the coat. Testifying at trial, Lester admitted ownership of the coat, but he explained that the buttons had been lost long before the assault in question.6 I n this holding, the C ourt upheld and extended the rule of

Burks v. State , 254 S.W.2d 970 (Tenn. 1953), and Hood v. State , 255 S.W. 51 (Tenn. 1923). The rule in those cases was "since the defendant took the stand and admitted his ownership of the seized property, he waived objection to the search warrant." Burks , 254 S.W.2d at 971. Lester upheld the waiver rule e ven thoug h the defendant denied committing the crime. 10 The primary issue ad dresse d by the Court in Lester was whether the wife's conse nt t o search the marital residence foreclosed the husband from objecting to the admission of certain o f his personal property seized. Ancillary perhaps to Lester , but o f profound pertinence here, is a consideration of the dilemma Lester confronted--that is, preserving his standing to o bjec t to the admission of the coat on t he grounds that it was illegally seized while contemporaneously admitting ownership of the coat and attempting to destroy its probative value as incriminating evidence against him.

The Court addressed this dilemma, albeit rather obliquely: "We think, too, that under the facts here where the man does tes tify tha t the coat was his and raises an issue as to the incriminating evidence therein that he waives any objection as to whether or not the coat was secured by reason of a search warrant." Id. at 291 (citation omitted). 6

However, in a petition for rehearin g , Lester squarely questioned whether waiver should be applied to the constitutional issue, e.g., the legality of the search and seizure. The Court clarified and expanded its original opinion, stating:11 It is argued that we "inadvertently overlooked the fact" that the case o f Batchelor v. State , which we cited in our original opinion, and the cases therein cited, rely primarilyupon admission of guilt rather than naked ownership of the seized property. This argument is i n connection with our statement that the petitioner waived any objection he might have to the search warrant when he testified as t o his ownership of the coat and thus attempted to say where the buttons had gone, etc. We think that our statement and conclusion in the original opinion were correct, and even under this situation, by the man thus testifying regardless o f what we have heretofore said about the search warrant, and even i f the coat had been illegally obtained, by thus testifying the man makes the evidence competent. There are many cases in this jurisdiction and others which deal withthe broad principle that if a defendant testifies in substance as t o evidence which has been otherwise erroneouslyadmitted, then his testimonyclears whatever error there might have been. Thus, these cases clearly show that the rule is not limited to the situation where the defendant takes the stand and admits he committed the crime with which he was charged. Id. at 292 (citations omitted).

The holding in Lester , and especiallythe language in the opinion on the petition to rehear, has come to be known as the "Lester Rule"; it has been applied since then with predictable results. See, e.g. , Patterson v. State , 475 S.W.2d 201 (Tenn.12

Crim. App. 1971) (held that defendant waived right to appeal a searchand seizure issue because he testified that the drug capsule found in his car was purchased under a doctor's prescription); Berry v. State , 474 S.W.2d 668 (Tenn. Crim. App. 1971) (held that defendant waived right to appeal a search and seizure issue because she testified, despite the fact that she denied all interest in the illegal drugs seized and produced a witness who ad mitt e d ownership).

I n an effort to temper the harsh effect of the rule, the drafters of the Tennessee Rules of Criminal Procedure promulgated Rule 41(g). As indicated above, Rule 41(g) was designed to prevent the result in Lester . Specifically, it provides that no waiver occurs if a defendant's testimony "gives the evidence an innocent
o r mitigating cast as to the charge" and "denies the charge." Tenn. R. Crim. P. 41(g).

W e must now scrutinize the defendant's testimon y t o determine whether its essence is such that it prevents waiver. The State argues that Valentine's testimony failed to give "an innocent
o r mitigating cast" to the evidence against him and asserts that Valentine, on cross-examination, admitted having manufactured marijuana. Thus, claims the State, this testimonycon stitutes neither a denial of the charges nor an innocent cast.13 In Harrison v. United States , the United States Supreme Court held that testimony by the defendant given at trial to rebut
a confession illegally obtained and i lle gally admitted into evidence could not be used against the defendant at his retrial. 392 U.S. 219 (1968). The Court reasoned:

[The defendant] testified only after the Government had illegally introduced into evidence three confession s , all wro ngfull y obtained, and the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby--the fruit of the poisonous tree, to invoke a metaphor. For the "essence of a provision forbidding the acquisition o f evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all." I n concluding that the [defendant's] prior testimony could b e used against him without regard t o the confessions that had been introduced in evidence before he testified, the Court of Appeals relied on the fact that the [defendant] had "made a conscious tactical decision to seek acquittalby taking the stand after [his] incustody statements had been let in

. . . ." But that observation is beside the point. The question is not whether

the [defendant] made a knowing decision to testify, but why . If he did so i n or der to overcome the impact of confessions illegallyobtained and hence improperlyintroduced, then his testimonywas tainted by the same illegalitythat rendered the confessions themselv e s inadmissib le.7 The Court further placed the burden squarely on the

Government to "show that its illegal action did not induce [the defendant's] testimony." 392 U.S. at 225.

8 W e note that other st ates have applied Harrisonto prevent waiver of review of search and seizure issues when the defendant testifies at trial. See, e.g. , Hay v. Kentucky432 S.W.2d 641 (Ky. 14 Id. at 222-23 (citation omitted)(footnotes omitted). 7

T h e prim ary concern of the Harrison Court was that the defendant should not be forc ed t o choose between competing constitutional rights because of an illegality perpetrated by the state. This dilemma is as great a concern here as it wa s to the Advisory Commission when Rule 41(g) was drafted.

B e caus e of the illegal seizure and subsequent improper admission of the seized evidence, Valentine testified in order to rebut the effect of the evidence. As a result, he had to waive his FifthAmendment and Article 1, Section 9, rights, and he became subject to a cross-examination over which he had no control.

Under Harrison , Valentine's testimony would not be admissible upon retrial unless t he State could show that the illegal evidence did not cause him to testify. Thus, to hold that his statements made during testimony, intended only to "meet, destroyor explain" evidence illegally admitted, operates to waive his right to raise the legality of the search a nd seizure would accord the statements a legitimacy which they do not otherwise have. 8Ct. App. 1968) (right to appeal search and seizure was not waived

where defendant took the stand and admitted possession of alcohol i n his home, located in a dry area, and explained w hy he had it there); Sherlock v. Texas , 632 S.W.2d 604 (Tex. Crim. App. 1982) (holding that under Harrison , even incriminating evidence offered by the defendant on direct did not waive right to appeal legality o f the search and seizu re); Thomas v. Texas , 572 S.W.2d 507, 508 n.2 (Tex . Crim. App. 1976) (no waiver of any objections to the legality of the search where defendant testified that biphetamine capsules found in his car were left there by a friend and that the pills were prescribed for the friend because "[i]t is clear this testimonywas offered to meet, destroy, and exp lain a fter the fruits of the claimed illegal search were admitted"). 15 We find that even under the narrow construction of Rule 41(g) urged by the State, Valentine's testimony gave the evidence presented an "innocent or mitigating cast." The State argues that Valentine admitted t o "manufacturing" marijuana, the crime with which he was charged. We observe that "to manufacture" marijuana i s a legally defined term. Specifically, "to manufacture" for purposes of Tenn. Code Ann. § 39-17-417(a)(4) means:

the production, preparation, propag ation, compounding, con versio n o r processing of a controlled substance, either directly or indirectlyby extraction from substances of natural origin, or independentlyby means of chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling o f its container, except that this term does not include the preparation

or compounding of a controlled

substance by an individual for the individual's own use . . . . Tenn. Code Ann. § 39-17-402(14) (emphasis added).9 The appellant was charged with possession of marijuana with

intent to sell, manufacture, or deliver. Submission of these three charges to the jury prevents us now from determining the precise charge upon which the conviction rests. 16 In his testimony, Valentine never indicated that he was doing anything besides manufacturing marijuana for his own use. This purpose is explicitlyexe mpted from the definition of "manufacture" and does not constitute an element of the crime with whichhe was charged. Further, because "manufacture" is a legal t e rm, the sole statement made by Valentine that he was manufacturing marijuana cannot reasonably be understood to encompass the precis e le gal definition found in the statute. Moreover, Valentine's testimony that he manufactured the marijuana for his own personal use constitutes an implicit denial of the charges of possession with intent to sell or deliver. 9

Thus, we find that through his testimony Valentine did, i n fact, cast the evidence in an innocent light, and he did deny the charge. Hence, his search and seizure issue was preserved on appeal. The result is that he fulfilled the requirements of Rule 41(g), thereby preserving his right to raise the constitutionality of the search and the admission of the seized evidence.

Finding that the trial court committed constitutional
error in admitting the illegally obtained evidence and that Valentine did not waive this issue on appeal, we now consider whether this error is harmless beyond a reasonable doubt. Chapman17

v . California , 386 U.S. 18, 22-23 (1967); State v. Howell , 868 S.W.2d 238, 252-54 (Tenn. 1993). Under this standard, the question i s "whether there is a reasonable poss ibi lity that the evidence complained of might have contributed to the conviction." Chapman , 386 U.S. at 23 (citation omitted).

I n this case, the improperly admitted evidence constituted th e State's case against Valentine. We cannot find that this error was harmless beyond a reasonable doubt. In a d dition, exclusion of the evidence in this case further s th e deterrent purposes of the exclusionary rule because it reinforces the duty that the police and law enforcement officials have to provide proper information to the magistrate in order to obtain a search warrant. Finally, we observe that

i t is not deterrence alone that warrants the exclusion of evidence illegallyobtained--it is "the imperative of judicial integrity." The exclusion of [illegally obtained evidence] deprives the Government of nothing to which it has any lawful claimand creates no impediment to legitimate methods of investigating and prosecuting crime. On the contrary, the exclusion of evidence causally linked to the Government's illegal activity no more than restores the situation that would have prevailed if the Government had itself obeyed the law. Harrison , 392 U.S. at 224 n.10 (citation omitted).18 For all the foregoing reasons, the convict ions a r e reversed; the indictment is dismissed.

______________________________ ADOLPHO A. BIRCH, JR., Justice
CONCUR: Anderson, C.J. Drowota, Reid, White, JJ.