# FILED
May 21, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1998 SE SSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9709-CR-00408

) ) Sullivan County ) v. ) Honorable Edgar P. Calhoun , Judge (at ) the suppressio n hearing) ) Honorable Lynn W. Brown, Judge (at trial) ) RICHARD M. PARROTT and ) (Possession of controlled s ubstances and EDITH L. PAR ROTT, ) possession of controlled subst ances with ) the intent to sell) Appellants. )
For Appellant Richard Par rott : For the Appellee : Charles R. Ray John Knox Walkup 211 Third Avenue North Attorney General of Tennessee Nashville, TN 37219-8288 and Janis L. Turner For Appellant Edith L. Parr ott : Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North John E. Herbison Nashville, TN 37243-0493 2016 Eighth Avenue South Nashville, TN 37204 H. Greeley Wells, Jr. District Attorney General P.O. Box 526 Blountville, TN 37617-0526

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N

The defendants, Richard M. and Edith L. Parrott, appeal as of rig ht from their respective drug

convictions in a jur

y trial in the Sulli

van County Criminal

Court, specifically Mr. Par

rott’s convictions for possession of a schedule III dr ug and possession of a schedule IV drug, Class A misdemeanors, and Mrs. Parrott’s convictions for possessi on with intent to sell over one-half gram of a schedul e II drug, a Class B felony, and two counts of possession of a schedule III dru g, a Class A misdemeanor. Mr. Parrott r eceived an eleven-month, t wenty-nine-day c

oncurrent sentence for each conviction with fifty percent to be s erved in the county j ail and the remainder to be served on probati on. Mrs. Parrott or iginally was sentence d as a Range I, standard offender, to serve ni ne years in the Department of Correction for the felony conviction, and she recei ved two eleven-month,twenty-nine-day sentences for the misdemeanor convictions w ith fifty percent of each to be ser ved in the county jail . The trial court ordered these three sentences to be served concurrently. The trial court modified Mrs. Parrott’s ni ne-year sentence to have her serve nine months in continuous confinement followed by nine y ears in a community corr ections house arrest prog ram. The def endants present t he follo wing issues for our re view:

(1) whether the trial cour t erred in failing to supp ress the fruits of the search because the af fidavi t supporting the search warrant contained intentionally or recklessly false statements, and (2) whether the trial cour t erred in failing to supp ress the fruits of the search pur suant to its inherent pow er to control pr oc edings at its bar because the assi stant district attorney inte ntionally included false st atemen ts in the a ffidavi t supporting the search w arrant. We affirm the trial court’s denial of the motion to suppress.

The affidavit in support of the warrant for the sea rch of the defendants’ home states in pertinent part:3 On Oct. 7, 1 992 a gents of the 2d Judicial Drug Task Force (DTF) arranged a drug d eal in which David Gi lley was to deli ver Dilaudid, a controlled substance, to an underco ve r officer posing as a Dilaudid buy er. O n Oct. 7, 1992 at about 8:25 p.m., agents of

the DTF stopped David Gilley and found in his possession 2 bottles of Dil audid (100 tablets each) and a n unknown amount of Dilaudid powder. David Gil ley wa s supposed to sell 200 Dilaudid tablets to theundercover officer for$4,000.00 (four t housan d). Gilley told the officers that he got the Dilaudid from Edith Parr ot [sic], and that he was to give $2000.00 of the $4000.00 to Edith Parrot [sic ] the night of

Oct. 7. Affiant has discovered that Edith Parrot

[sic] is employed at Chapman Drugs, a pharmaceutical outlet. Officers gave Gilley $2000.00 in marked DTF money and put a body wire on hi m, and went wi th him to the home of Edith Parrot [sic]. Officers listened and obse rved as Davi d Gilley met with Edi th Parrot [sic] and gave her the marked $2000.00. Edith Parrot [sic] ac cep ted the money and quizz ed David Gilley ab

out another $1000.00 due on another Dilaudid sale. Parrot [sic] and Gill ey also were heard discussi ng a Valium deal. This conversation was recorded and occurred at approx. 8:56 p.m., Oct. 7, 1992. Gilley was searched by DTF officers before a nd after the conversation with Parrot [sic]. He had no other such $100 bills on his per son at an y time, oth er than th e DTF mon ey. Sullivan County Sher

iff’s Department Agent Johnny R ay Murray, wh o was assigned to the Second Judicial Drug Task Force, signed the affidav it.
At the suppression hearing , an assistant district attorney in Sulliv

an County testified that on October 7, 1992, he assisted the poli ce in preparing a wa rrant for the search of the defendants’ home. He s aid that he spoke with four officer s, Keith Feathers, Johnny Murr ay, Jerry Robins

on, and Steve Terry, and bas ed the information in the supporting affidavit on what they told him. H e stated that the detective di vision of the Bristol Police Depar tment is an open area and that as he t alked with the four officers, sometimes several of the m would be speaking at onc e and sometimes he would focus on one indivi dual. He said that initia lly he thought that one or more of the officers had personally obser ved the transaction betw een David Gilley a nd Mrs. Parrott, but after questioning the officer s and before drafting the war rant, he learned that none of the four had directly seen the transaction.

The assistant district att orney testified that the officers told him that they followed David Gill ey to the area of the defendants’ home. H e said that some of the4

officers were supposed to remai n in their car and liste n to the conversation betw een Gilley and Mrs. Parrott as it was being recorded. He said that other officers were stationed around the defendants’ ho use and that Officer Feathers was responsible for observing the transaction. He said that Officer Feathers reported that h e was not able to keep Gilley in si ght because Gilley had gone behind the defendants’ house or t o an adjacent house. He stated that Officer Feathers told him that once he l ost sight of Gilley, he did not see him again until minutes later.

The assistant district attorney testified that the part of the affidavit indicating that the officers ob served the transaction bet ween Gilley and Mr

s. Parrott was misleading, but it was not false. He said that his experience w ith cases of this typewas that one had to move quickly to recover marked money in a search. On crossexamination, he said that he di d not write that the officers personally observed Gilley giving the two

thousand dollars to Mrs.Parrott, but he acknowl edged that to the extent that the affidavit could be read th at way, it was misleading. He stated that he was trying to write quickly and efficiently because he wanted the officers to get to the def endants’ house immediately because he di d not know what woul d happen to the marked money. He testified that he accompanied Off icer Johnny Murray to Judge Klyne Lauderback’s house to get the warrant signed.

Officer Keith Feathers testified that he saw the informant, Dav id Gilley, at the location where the officers placed the body wire on him before his me eting with Mrs. Parrott. He said that he the n went through the alley between Pennsylvani a Avenue and Tennessee Ave nue, but he ha d trouble with som e dogs and could not get close eno ugh to see Gilley meet wi

th Mrs. Parrott. He s

aid that he never saw G illey at or near the defendants’ home, and he did not see Mrs. Parrott at all that evening until the officers returned to the defendants’ house to ex ecute the warrant. He s aid he next saw Gill ey5

when the meeting was over and the officers recovered the body wire. He said that this took place away from the defendants’ home, but he was not sure of the exact location.
Judge J. Klyne Lauderback testified that he is the General Sessions Court judge in Sullivan C

ounty. He said that he held this position on October 7,1992, but he did not remember signing the search warrant in this particular case. He said that his typical practice is

to ask the affiant if he or she has rea d the search warrant, t

o have the affiant swear that what he or she is signing is true, to have the affiant sign the warrant in his presence an d then to sign th e warr

ant himself.
Agent Johnny Murray

testified that he did not see Dav id Gilley approach the defendants’ house and that he never saw Gilley meet w

ith Mrs. Parrott. He

stated that he, Agent Robinson and Lieut enant Steve Terry parked within a block of the defendants’ house and ran the recording device. He stated tha t ordinarily the officers have to stay withi n a few hundred yards of the i nformant to receive the transmi ssion from the wire.

Agent Murray said that he saw Gilley i n his car turning on the side street near the defendants’ house and traveling in the direction of the defendants’ house. He stated that through the recor ding device, he heard Gi lley driving,exiting his car, and talking with a female about drugs he had delivere

d, money he had been paid, and money that he was giv

ing to the female. He said that he next saw Gilley two or three minutes after the conversatio n ended. He said that Gilley was driving i n the direction of the telephone company parking lot where he and the officers h ad originally park ed before Gilley was to go to the defendants’ house.

Agent Murray testified that he did not personally know the identity of the female who spoke with Gil ley. He said that before Gi lley was wir ed, Gilley said that he6

was going to meet Mr

s. Parrott. Agent Mur

ray testified that the defendants’ house and the house of Gilley’s mother -in-law were “located together.”
Agent Murray testified that the assistant distri ct attorney drafted the search warrant based on i nformation given to him by Lieutenant Terry, Agent R obinson and himself. He said that the ass istant district attorney was told that officers w ere in the area of the defendants’ house monitoring the conversation and that one officer was sent to observe the meeting, but Agent Murray did not know if the assistant district attorney was told that

Mrs. Parrott was seen with Gilley.He stated that he went to Judge Lauderback’s house w ith the assistant distri ct attorney, and he swo re that the information in the search w arrant was true. He said that although he now knows that no one saw the meeting betw een Gilley and Mrs. Parrott, he had not spoken wi th the officer in charge of observi ng the meeting at the time he s wore to the search w

arrant.

The trial court denied the motio n to suppress finding that nothi ng indicated an intent to lie on the part of the assistant district attorney and tha t probable cause existed even without the officers’ observations because the off icers overheard Gilley’s alleged conversation with Mrs. Parrott. In its Memorandum Opinion, the trial court found: The affiant on the search warrant indi cated that he did

not know [O]fficer Feath er s failed to observe the tran saction until after the search warrant w

as issued although the assi stant district a tto rney’s testimony appear ed to indicate otherwis e. Regardless, there is noevidence of willful intent to decei

ve the mag istrate or even of recklessness.The court finds that th e “misleading” information is the result of careless com position of conclusory facts. The trial court found that probable cause was present even without these conclusory facts because of “corroborrati ve facts including, but not limited to, the radio tr ansmitted conversation with the person alleged to be Edith Parrott and inculpatory statements of Gilley.” The trial

court found that the informant’s rel iability was est ablished even in the absence of the conclusory facts.7 I. FOURTH A MENDMENT VIOLA TION The defendants contend that the search v iolated their Fourth Amendment right to be free of unreasonable s earches and seizures bec ause the affidavit supporting the search warrant cont ained intentionally false s tatements made to deceive the magistrate. The defendants argue that the evidence preponderates against the trial court’s factual finding that ne ither the assistant distr ict attorney nor the affiant act ed with a willful intent to decei

ve or even reckles

sness. The defendants also contend that the trial court made an incorrect legal conclusion when it determined that the info rmant’s reliability w

as established by corr

oborating facts such as the r adio transmission.

In Franks v. Delaware , the United States Supreme Cour t held that the fruits of a search should be ex cluded when the affidavit in support of the search warr ant contains deliberately o r recklessly false s tatements by the affiant, which are material to the establishment of probable cause. 438 U.S. 154, 172-73, 98 S. Ct. 2674, 2684 (1978). The “fraudulent misrepresentation of a material fact will invalidate a search warrant.” State v. Little , 560 S.W.2d 403, 406 (Tenn. 1978). Our supreme court has defined two situations in which false information within the supporting af fidavit mandates the application of the exc lusionary rule despite the affidavit’s facial suffic iency: (1) a false statement made with intent to deceive the Court,

whether material or immaterial to the issue ofprobable cause, and (2) a false sta te ment, essential to the establis hment of probable cause, recklessly made. Reckless ness may be established by

showing that a

statement was false when made and that affiant did not have reasonable g rounds for believing it, at that time. Id. at 407. Thus, even an immaterial statement in the affidavit wi ll result in excl usion of the evidence if the statement is intentionally false. H owever, “negli gence or innocent8

mistake [is] insufficient” to support exclusion. Franks , 438 U.S. at 172, 98 S. Ct. at 2684; see Little , 560 S.W.2d at 406-07.

A trial court's factual findi ngs on a motion to suppress ar e conclusive on appeal unless the evidence pr eponderates against them. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996); State v. Jones , 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). The application of the law to the facts as determined by the tr ial court is a questi on of law which is r

eviewed de novo on appeal. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997).

A. FALSE STA TEMENT In the present case, the trial court found that the statements in the affidavit that officers went w ith David Gilley

to the defendants’ home and observed Gilley meeting with Mrs. Parrott w ere neither intentionally nor recklessly fals

e but, instead , resulte d from th e “carele ss compo sition of concluso ry facts. ” Agent Murr ay, the affiant, testified that at the time he s ought to have the warr

ant signed, he had not spoken with the officer in ch arge of personally obser ving the meeting betw

een Gilley and Mrs. Parrott and did not know that the officer had failed to observe the meeting. Agent Murray said that the assistant distric t attorney had drafted the affidavit after interviewing the various officers inv olved. The evidence suppor ts the trial court’s factu al findings.

The defendants focus their concern on the t estimony of the assistant district attorney, w

ho admitted that at the time he drafted the affidavit, he knew that the officers had not personally seen Gilley meet with Mrs. Parrott. The assistant district attorney testified that the s tatements were misleading in the sense that they coul d be interpreted to indicate personal observation. He explained that he mad e this error while attempting to write quickly and efficiently in order to get the search warrant and secure9

the evidence as soon as poss ible. While this testimony supports the finding that the statements in question were indeed false, it does not go to the inten tional or reckless deceit of the affiant, Agent Murray . Both Franks and Little permit the application of the exclusionary rul e when the affiant intentionally or recklessly see ks to deceive the magistrate. See Franks , 438 U.S. at 172, 98 S. Ct. 2684 ( holding “[t]he deliberat e falsity or reckless disregard whose impeac hment is permitted today is only that of the affiant, not of any nongovernmental informant”); Little , 560 S.W.2d at 406-07 (noting that to foreclose inquiry into false statements in a supporting af fidavit would effectively transfer the discretion w hich rests with the mag istrate to the affiant). When analyzing false statements in a facially valid supporting affidav it, we do not look bey

ond the conduct of the affiant.

B. PROBABLE CAUSE Even if we were to d etermine that the affiant recklessl y made the statements in question, we agree with the trial court’s conclusion that probable cause for the search warrant ex isted even without an officer ’s personal observati on of the transaction. If probable cause is based upon information from an informant r ather than the affiant's personal knowledg e, we judge the sufficiency of the probable cause by applyi ng the t

wo-pr onged te st of Aguilar-Spinelli

. State v. Jacumin , 778 S.W.2d 430, 432, 436 (Tenn. 1981). This test r equires the state to establ ish a factual basis for the information provided and the v eracity of those supply ing the information. Id. at 432. The veracity prong may be satisfied by establ ishing an informant's inher ent credibility or by establishing the r

eliability of the informatio n. Spinelli v. United St ates , 393 U.S. 410, 415, 89 S. Ct. 584, 588 (1969); Aguilar v. Texas , 378 U.S. 108, 115, 84 S. Ct. 1509, 1514 (1964). However, any deficiency in the informant's information under this twoprong test may be over come by independent police cor roboration. Jacumin , 778 S.W.2d at 436.10 The aff idavit in t he prese nt case st ates tha t Gilley sai d Mrs. Parr ott gave him dilaudid and that he was to give two thousand dollars of the proceeds back to her that night. The affidavit rev eals that during the recor ded conversation, Gill ey discussed two other drug deals with Mrs. Parrott. Agent Murray testified that Gilley had told him that he planned to meet with M rs. Parrott that night.Agent Murray state d that the officers accompanied Gilley to the area of the defendants’ house, and they observed Gilley drive aw

ay in the direction of the defendants’ house. Agent Murray said that the officers heard and recorded Gill ey’s conversation w ith a female. The independent police corroboration of Gilley’s location along with the recorded conversation make Gilley’s identificat ion of Mrs. Parrott reli able and yield sufficient probable cause to support the warrant even in the absence of an officer’s person al observation of Mrs. Parrott.

II. INHERENT POWER

The defendants contend that pursuant to the tr ial court’s inherent pow er to supervise and control pr oceedings at its bar, the trial court should hav e excluded the fruits of the search in order to sanction the assistant district attorne y for affirmatively including false statements i n the affidavit. The defendants argue that this inherent power includes the author ity to sanction attorney

s for pursuing matters in bad faith and for acting recklessly. The state maintains that the tri al court correctly determined that the statements in the affidavit dr afted by the assistant distr ict attorney were not deliberately or recklessly false. While we in no way justify the assistant district attorney’s failure to provide the most accurate portrayal of the underlying facts, we hold that the evidence does not prep onderate against the trial court’s finding that the attorney’s use of misleading statements in the affidavit w as the result of haste and negligence.11 Prosecutors have a duty to submit accurate information to the court. State ex rel. Barnes v . Henderson , 220 Tenn. 719, 727-28, 423 S.W.2d 497, 501 (Tenn. 1968); see State v. Spurlock , 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993) (holding that the distri ct attorney has a duty to correct false testimony ). Pursuant to their inherent power to

supervise and control their own proceedings , courts may sanction attorneys “but only for pursuing matter s in bad faith or conducting themselves in a reckless manner.” Andrews v. Bible , 812 S.W.2d 284, 291 (Tenn. 1991) (citations omitted). In the present case, the trial court found that alth ough the disputed statements in the affidavit w ere “misleading” and “ not strictly corr ect,” “there is no evidence of willful int

ent to deceive the magistr ate or even recklessnes s.” Instead, the trial court determined that the misleading statements res ulted from carelessness and the use of conclusory facts. The evidence does not preponderate against the trial court’s findings.

The defendants contend that courts usuall y review suppor

ting affidavits with a degree of deference becaus e these affidavits are typi cally composed hastily by persons in the midst of a crimi nal investigation w ho do not have the benefit of a law degree. See United States v. Vantresca , 380 U.S. 102, 108, 85 S. Ct. 741, 746 (1965). The defendants argue that because an attorney drafted this affidavit, the false statements should be held to a more s tringent standard of revi ew than the intentional or reckless conduct proscr ibed in Little . However, we do not believe that the assi stant district attorney’s careless wording of the affidavit requires the suppression of evidence gathered in a search purs uant to a warrant, even if we could impose such a san ction under ou r inheren t supervis ory autho rity.

In consideration of the foregoing , we affirm the trial court ’s denial of the motion to suppress.12 ______________________________ Joseph M. Tipton, Judge
CONCUR:

Gary R. Wade, Presiding Judge

David H. Welles, Judge