IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 16, 2013 Session

STATE OF TENNESSEE v. MICHAEL T. SHELBY

Direct Appeal from the Circuit Court for Montgomery County

No. 41001306 John H. Gasaway, Judge

No. M2011-01289-CCA-R3-CD - Filed June 19, 2013

In this State appeal, the Defendant, Michael T. Shelby, was indicted for promoting the

manufacture of methamphetamine, possession of methamphetamine, and possession of drug

paraphernalia. The Defendant filed a motion to suppress, claiming the search warrant lacked

probable cause. After a suppression hearing, the trial court granted the Defendant’s motion

to suppress, finding that the search warrant was legally defective, and suppressed the

evidence seized pursuant to the warrant. The State appeals, contending that the trial court

erred when it granted the Defendant’s motion to suppress because the informant provided

sufficiently reliable information upon which the warrant could be properly issued. After a

thorough review of the record and applicable authorities, we reverse the judgment of the trial

court and remand the case for further proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL and JAMES CURWOOD WITT, JR., JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney

General; John W. Carney, Jr., District Attorney General; and John E. Finklea, Assistant

District Attorney General, for the appellee, State of Tennessee.

Michael T. Shelby, Clarksville, Tennessee, pro se.

OPINION

I. Facts

This case arises from criminal charges that were the result of evidence seized by
police after they executed a search warrant. The Defendant filed a motion to suppress the

evidence seized as a result of the search warrant, contending that the search warrant lacked

probable cause. At the hearing on the motion to suppress, the only evidence presented by the

Defendant was the search warrant itself. The affidavit of facts in support of probable cause

to issue the search warrant read:

This affidavit is made by Agent Kyle Darnell who has 14 years of law

enforcement experience as a sworn police officer and 4 years as a narcotics

investigator, now testifies herein which is based upon information received

from other law enforcement officers, unless otherwise stated, which your

affiant believes to be true, and is as follows.

In early October 2009 your Affiant opened a methamphetamine

manufacturing investigation. This investigation was begun based on

information from citizens and law enforcement officers. Two subjects in this

investigation were Crystal Lancaster (AKA Crystal Young) and Guy Suiter.

On February 10, 2010 a concerned citizen came to the 19 Judicial

th

District Drug Task Force in an unsolicited and voluntary manner. Said

concerned citizen did not have a criminal record as verified by NCIC and a

local criminal history search. Said concerned citizen was seeking to give

information concerning the manufacture of methamphetamine and was not

asking for any kind of remuneration or special consideration in return for this

information. The concerned citizen stated they were in the company of Crystal

Lancaster (AKA Crystal Young), Guy Suiter and Michael Theodore Shelby

from Friday February 5, 2010 until Monday February 8, 2010 on a continuous

but involuntary basis.

This concerned citizen stated that they witnessed Crystal Lancaster

(AKA Crystal Young), Guy Suiter and Michael Theodore Shelby manufacture

methamphetamine. The concerned citizen described observing Crystal

Lancaster (AKA Crystal Young) Guy Suiter and Michael Theodore Shelby

mixing chemicals and further stated that Crystal Lancaster (AKA Crystal

Young) stated that they were making methamphetamine and showed the

concerned citizen finished methamphetamine. All of this manufacturing of

methamphetamine was being conducted at Michael Theodore Shelby’s

property located at 795 Iron Workers Road in Montgomery County Tennessee.

The concerned citizen also stated they witnessed several people coming to the

property and buying and using methamphetamine.

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The concerned citizen stated that on February 9, 2010 that Michael

Theodore Shelby purchased pseudoephedrine at the Wal-Mart pharmacy on

Madison Street in Clarksville Tennessee for the purpose o[f] manufacturing

methamphetamine. This purchase was verified in the pseudoephedrine log.

By coincidence Agent Black of the 19 Judicial District Drug Task Force was

th

in the pharmacy at the same time and witnessed Michael Theodore Shelby

purchasing pseudoephedrine.

As a result of the execution of this search warrant, the Defendant was arrested and

indicted for promoting the manufacture of methamphetamine, possession of

methamphetamine, and possession of drug paraphernalia. The Defendant filed a motion to

suppress the evidence seized during the search, claiming that the search warrant was not

legal.

After presenting the warrant, the parties presented legal arguments. The Defendant’s

counsel (“Counsel”) contended that the warrant was invalid on its face. He contended that

the “concerned citizen” did not qualify as a “citizen informant” because he was with the

Defendant and others over the course of four days while they allegedly manufactured

methamphetamine. Counsel said that this “concerned citizen” was part of the criminal

milieu. As such, Counsel contended the court must determine whether there was sufficient

probable cause based on the information the informant provided. Counselstated that the only

thing police were able to confirm from the informant’s statement was that the Defendant

purchased pseudoephedrine at a Wal-Mart pharmacy on Madison Street on February 9, 2010.

Counsel said that, in and of itself, was not sufficient to the establish reliability of the

information the informant had provided.

The State countered that the search warrant indicated that the concerned citizen was,

in fact, a citizen informant and not part of the criminal milieu. As such, the information he

provided supported probable cause to issue the search warrant. The State pointed out that

the search warrant states that the informant was at the house on an “involuntary basis.” The

State further notes that the informant describes an event wherein the Defendant purchased

pseudoephedrine, and the police stated in the search warrant that they were able to confirm

that with the log kept by the store. The State argued that, even if the informant were

considered part of the criminal milieu, the informant’s information was still reliable in that

portions of the informant’s story could be corroborated.

The trial court granted the Defendant’s motion to suppress the evidence obtained as

a result of a search warrant. The trial court’s order stated:

THIS CAUSE came to be heard on the 18th of May, 2011 upon Defendant’s

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motion to suppress all evidence obtained as a result of the search warrant

issued and executed at 795 Iron Workers Road in Montgomery County

Tennessee.

After a hearing on the matter, this Court finds that the search warrant

was not based on information from a Citizen Informant, and that the search

warrant did not adequately establish the reliability of the informant’s

information pursuant to State v. Jacumin, 778 S.W.2d, in violation of Article

1, Section 7 of the Tennessee Constitution.

WHEREFORE, it is hereby ORDERED, ADJUDGED and DECREED

that all evidence seized as a result of the search warrant issued and executed

at 795 Iron Workers Road in Montgomery County Tennessee shall be

suppressed and case dismissed.

It is from this judgment that the State now appeals.

II. Analysis

On appeal, the State contends that the trial court erred when it granted the Defendant’s

motion to suppress. The State asserts that the information contained in the affidavit

sufficiently supports a finding of probable cause. The State first contends that the trial court

erred when it found the “concerned citizen” was not a “citizen informant” but, rather, a

“criminal informant.” The State further contends that, even if the informant was a “criminal

informant,” there is a sufficient basis to establish the reliability of the informant as required

by State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989). The Defendant filed no brief on appeal.

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“This Court will uphold a trial court’s findings of fact in a suppression hearing unless

the evidence preponderates otherwise.” State v. Hayes, 188 S.W.3d 505, 510 (Tenn. 2006)

(citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). On appeal, “[t]he prevailing party

in the trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable

and legitimate inferences that may be drawn from that evidence.’” State v. Carter, 16

S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)).

“Questions of credibility of the witnesses, the weight and value of the evidence, and

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of

fact.” Odom, 928 S.W.2d at 23. Our review of a trial court’s application of law to the facts

The record indicates that this Court ordered the Defendant to file a brief, giving him thirty days in 1

which to so do. The Defendant failed to file a brief within that time period, and this Court ordered that the

case should be considered on the record and the brief of the State.

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is de novo, with no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn.

2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958

S.W.2d 626, 629 (Tenn. 1997)). When the trial court’s findings of fact are based entirely on

evidence that does not involve issues of witness credibility, however, appellate courts are as

capable as trial courts of reviewing the evidence and drawing conclusions, and the trial

court's findings of fact are subject to de novo review. State v. Binette, 33 S.W.3d 215, 217

(Tenn. 2000).

The United States and Tennessee Constitutions state that search warrants shall issue

only upon probable cause. U.S. Const. amend. IV; Tenn. Const. Art. 1, section 7. “As a

general rule, a search warrant shall be issued only on the basis of an affidavit, sworn before

a ‘neutral and detached’ magistrate, which establishes probable cause for its issuance.” State

v. Stevens, 989 S.W.2d 290, 293 (Tenn .1999) (quoting State v. Jacumin, 778 S.W.2d 430,

431 (Tenn.1989)) (citing State v. Moon, 841 S.W.2d 336, 338 (Tenn. Crim. App. 1992)). A

showing of probable cause generally requires “a reasonable ground for suspicion, supported

by circumstances indicative of an illegal act.” State v. Johnson, 854 S.W.2d 897, 899 (Tenn.

Crim. App. 1993) (citing Lea v. State, 181 S.W.2d 351, 352 (Tenn. 1944)).

An affidavit establishing probable cause is an indispensable prerequisite to the

issuance of a search warrant. See, e.g., T.C.A. § 40-6-103; Tenn. R. Crim. P. 41(c); State v.

Sales, 393 S.W.3d 236, 240 (Tenn. Crim. App. 2012). Such probable cause “must appear in

the affidavit [itself] and judicial review of the existence of probable cause will not include

looking to other evidence provided to or known by the issuing magistrate or possessed by the

affiant.” Id. (citing Moon, 841 S.W.2d at 338; and Henning, 975 S.W.2d at 295). To

sufficiently make a showing of probable cause, an affidavit “must set forth facts from which

a reasonable conclusion might be drawn that the evidence is in the place to be searched.”

State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993). However, a decision regarding the

existence of probable cause requires that the affidavit contain “more than mere conclusory

allegations by the affiant.” State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999); see also

Moon, 841 S.W.2d at 338.

If an ordinary citizen providesinformation relied upon for probable cause, no showing

of the informant’s basis of knowledge or veracity is required. State v. Echols, 382 S.W.3d

266, 279 (Tenn. 2012) (citating Melson, 638 S.W.2d at 342, 355-56 (Tenn. 1982); Smith, 867

S.W.2d at 347 (holding that a “citizen informant”–such as a victim or bystander witness–who

provides information for a search warrant affidavit is entitled to a presumption of

reliability)). It is only when “the arresting officers rely in part on information from an

informant from the criminal milieu[that] they must be able to demonstrate that the informant

(1) has a basis of knowledge and (2) is credible or his information is reliable.” Id. (citing

State v. Lewis, 36 S.W.3d 88, 98 (Tenn. Crim. App. 2000); Jacumin, 778 S.W.2d at 436

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(Tenn. 1989)). In the absence of any information as to whether an anonymous informant is

a citizen-informant, the reliability of the informant may not be presumed. Id. (citing State

v. Carter, 160 S.W.3d 526, 534 (Tenn. 2005)). Tennessee law, however, draws a distinction

between a “citizen informant” and an informant from “the criminal milieu.” State v. Melson,

638 S.W.2d 342, 354 (Tenn. 1982). While information from a criminal informant must be

judged by the Aguilar–Spinelli test, known citizen informants typically enjoy a presumption

of reliability. See id. at 356-57; see also State v. Luke, 995 S.W.2d 630, 637 (Tenn. Crim.

App. 1998). A person from the criminal milieu is one who is “intimately involved with the

persons informed upon and with the illegal conduct at hand.” Melson, 638 S.W.2d at 354

(internal citations and quotations omitted). Information provided by criminal informants “is

not given in the spirit of a concerned citizen, but often is given in exchange for some

concession, payment, or simply out of revenge against the subject.” State v. Stevens, 989

S.W.2d 290, 294 (Tenn. 1999) (internal citations and quotations omitted). In contrast, citizen

informants are either the “victims of the crime or have otherwise seen some portion of it.”

Melson, 638 S.W.2d at 354 (internal citations and quotations omitted).

In the case under submission, we agree with the trial court that the informant appears

to be part of the criminal milieu. We note that the search warrant does state that he was with

the Defendant in an “involuntary” capacity, but the search warrant does not explain thisterm.

Further, the events the informant described for police occurred over a period of five days,

and included a trip by the informant to a Wal-Mart store. Under these circumstances, we

conclude that he cannot be deemed an innocent bystander. We now turn to see whether the

information provided by him was reliable pursuant to the test enumerated in Jacumin.

In Jacumin, the Tennessee Supreme Court adopted a two prong test to determine

whether information provided by an informant in the criminal milieu was sufficient to

establish probable cause to issue a warrant. Jacumin, 778 S.W.2d at 436. The Court

clarified that, when relying on information from such an informant, the affiant must be able

to demonstrate that the informant has a basis of knowledge and that he is credible or the

information is reliable. See Id. (adopting two-prong test of Aguilar v. Texas, 378 U.S. 108,

(1964), and Spinelli v. United States, 393 U.S. 410 (1969)); State v. Lewis, 36 S.W.3d 88, 98

(Tenn. Crim. App. 2000). The basis of knowledge prong requires that the affidavit contain

facts from which the magistrate may determine that the informant had a basis for the claim

regarding criminal conduct or contraband. Jacumin, 778 S.W.2d at 432; see also Moon, 841

S.W.2d 336, 338 (Tenn. Crim. App. 1992). The veracity prong requires that the affidavit

contain facts from which the magistrate may determine either the inherent credibility of the

informant or the reliability of the information provided. Id. A deficiency in the above

two-prongs of informant’s information may be overcome by independent police

corroboration. Jacumin, 778 S.W.2d at 436; State v. Marshall, 870 S.W.2d 532, 538-39

(Tenn. Crim. App. 1993); see generally State v. Williams, 193 S.W.3d 502, 509 (Tenn.

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2006).

In Jacumin, our Supreme Court warned against applying the two-pronged test

hypertechnically. 778 S.W.2d at 436. It also approved, as it previously had in another case,

the United States Supreme Court’s statement in Illinois v. Gates relative to the duties of

magistrates and reviewing courts regarding the determination of probable cause:

The task of the issuing magistrate is simply to make a practical, commonsense

decision whether, given all the circumstances set forth in the affidavit before

him, including the “veracity” and “basis of knowledge” of persons supplying

hearsay information, there is a fair probability that contraband or evidence of

a crime will be found in a particular place. And the duty of a reviewing court

is simply to ensure that the magistrate had a “substantial basis for . . .

conclud[ing]” that probable cause existed.

Gates, 462 U.S. 213, 238-39 (1983).

A finding of probable cause made by an issuing magistrate is entitled to great

deference. State v. Yeomans, 10 S.W.3d 293, 296 (Tenn. Crim. App. 1999) (citing Melson,

638 S.W.2d at 357). Therefore, the standard to be employed in reviewing the issuance of a

search warrant is “whether, in light of all the evidence available, the magistrate had a

substantial basis for finding probable cause.” State v. Meeks, 876 S.W.2d 121, 124 (Tenn.

Crim. App. 1993).

We conclude in the case under submission that, in light of all the evidence available,

the magistrate had a substantial basis for finding probable cause. We conclude the affiant

demonstrated that the informant had a basis of knowledge and that his information was

reliable. First, the affiant was able to confirm that the Defendant and the informant were

together during the relevant time period. The informant stated that the Defendant to a WalMart where the Defendant purchased pseudoephedrine. By coincidence Agent Black of the

19th Judicial District Drug Task Force was in the pharmacy at the same time and witnessed

the Defendant purchasing pseudoephedrine, providing independent police corroboration of

the Defendant’s information. The affiant went to the Wal-Mart and verified that the

Defendant had purchased pseudoephedrine on that date through the pseudoephedrine log that

pharmacies are required by law to maintain, further corroborating the Defendant’s

information. Additionally, the informant’s information included that the Defendant was

manufacturing methamphetamine, and the affiant stated he was aware that pseudoephedrine

was a necessary ingredient in the manufacture of methamphetamine. The informant gave an

address where the Defendant was manufacturing the methamphetamine, which was the

location for which the affiant sought a search warrant. We conclude that, given these facts,

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the magistrate did not err when it determined that there was a fair probability that contraband

or evidence of a crime would be found at that particular place. As such, we conclude that

the trial court erred when it granted the Defendant’s motion to suppress. We, therefore,

reverse the trial court’sjudgment and remand the case for further proceedings consistent with

this opinion.

III. Conclusion

Based on the record and aforementioned authorities, we conclude that the trial court

erred when it granted the Defendant’s motion to suppress. Accordingly, we reverse the

judgment of the trial court and remand for further proceedings consistent with this opinion.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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