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

OPINION
2

CONVICTIONS REVERSED AND INDICTMENT DISMISSED BIRCH, J.
1

Tenn. Code Ann. § 39-17-417(a).

3

Gregory Adams 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 of
4

marijuana t o the info rmant. As a result of the purchase, Henry

County Deputy 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

from a 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 Valentine
5

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

guilty of 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 to
2

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

search warrant 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

 State
7

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:

Although an 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

which the informant concluded that

the narcotics were where he claimed

they were, 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

from Valentine 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

credibility of 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

improvidently issued by the 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

illegally obtained 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

erroneously permitted to be

introduced against a defendant, and

i f the defendant subseq uently

testifies as to the same evide nce

but gives it an innocent or

mitigating cast as to the charg e

against him and denies the c harge,

such testimony of the def endant
5

393 S.W.2d 288 (1965), cert. denied , 383 U.S. 952 (1966).

9

shall not be dee med to be a waiver

o f his 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 attem pt to match the

buttons recovered at the scene with those on one of his coats.

Although Lester 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

primarily upon 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

with the broad principle that if a

defendant testifies in substance as

t o evidence which has been otherwise

erroneously admitted, then his

testimony clears 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 especially the 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

search and 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 testimony con 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 acquittal

by 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

illegally obtained and hence

improperly introduced, then his

testimony was tainted by the same

illegality that 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 Harrison to prevent

waiver of review of search and seizure issues when the defendant

testifies at trial. See, e.g. , Hay v. Kentucky 432 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

Fifth Amendment 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,

destroy or 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. 8
Ct. 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

testimony was 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

indirectly by extraction from

substances of natural origin, or

independently by 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 explicitly exe mpted from the definition of

"manufacture" and does not constitute an element of the crime with

which he 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. Chapman
17

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

illegally obtained--it is "the

imperative of judicial integrity."

The exclusion of [illegally obtained

evidence] deprives the Government of

nothing to which it has any lawful

claim and 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.