# FILED

May 21, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MARCH 1997 SE SSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9606-CR-00242

) ) Sumner County v. ) ) Honorable Jane W. Wheatcraft, Judge ) DANNY RAY DORR IS, ) (Certifie d Questio n of Law) ) Appellant. )
For the Appellant : For the Appellee : David Allen Doyle Charles W. Burson District Public Defender Attorney General of Tennessee and and Steven F. Glaser Peter Coughlan Assistant Public Defender Assistant Attorney Gener al of Tennessee 117 East Main Street 450 James Robertson Parkwa y Gallatin, TN 37066 Nashville, TN 37243-0493 Lawrence Ray Whitley District Attorney General and Dee Gay Assistant District A

ttorney General 113 East Main Street Gallatin, TN 37066

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N

The defendant, Danny Ray Dorr is, appeals as of right upon reservation of a certified question of law from the Sumner County Crimi nal Court. Upon his plea o f guilty, the defendant was convicted of felonious possession with the inten t to sell marijuana and sentenced to two years, with ninety days of his sentence to be served in jail and the remainder of his s entence to be served in a communi ty corrections program. The case arose from a s earch of the defendant’s residence pur suant to a warrant. The certified q uestion of law that is dis positive of the case is st ated as follows:

Whether the information provided in the affidavit for the search warrant was sufficient to allow the magist rate to make the requisiteindependent deter minati on of the reliability of the informant and the information sought to be relied upon. We hold that probable cause was shown t o render the search war rant valid.

The affidavit of Jerry Carpent er, a drug task force officer, states as follows: YOUR AFFIANT HAS RECEIVED INFORMA TIO N

FROM ACONFIDENTIAL INFORMANT WHO STATED THAT DA NNYR. DORRIS IS SELLING MARIJUANA FROM HI S RESIDENCE AT 199 LAWRENCE T O WN ROAD IN GALLATIN, SUMNER COUNTY TENN ESSEE. WITHIN THE LAST (5 ) FIV E DAYS, SAID CONFIDENTIAL INFORMANT HAS MADE A CONTROLLED PURCHASE OF MARIJUANA FROM DANNY DORR IS IN SIDE THE ABOVE DESCRIBED LO CATION. BEFORE THE PURCHASE THE SAI D INF ORMANT AND INF ORMANTS VEHICLE WER E SEARCHED FOR CONTRABAND AND NONE WAS FOUND. SAID INFORMAN T WAS EQUIPPED WITH A POLICE CONSENS UAL LIST ENING DEVICE AND GIVE N UNDERCOVER

BUY MONEY

TO PURCHASE MARIJUANA FROM DANNY

DORRIS. SAID

INFORMAN T ALONG WITH INV. GREG BUNCH WERE THEN FOLLOWED BY YOUR AFFIANT AND INV. MONTY MCCUR RY T O DORRIS’S RESIDENCE. SAID INFO RMAN T WAS THEN OBSERVED BYINV

. GREG BUNCH TO ENTER THE R ESIDENCE. YOUR AFFIANT AND INV. MONTY MCCURRY MONITORED AND RECORDED CONVERSATION BETWEEN D ORRIS AND THE INFORMANT IN WHICH MARIJUANA WAS SOLD TO THE INFORMANT BY DANN Y DORRI S. AFTER THE3 PURCHASE THE SA I D INFORMANT THEN GAVE INV. GREG BUNCH THE MARIJUANA WHICH THE INFORMANT S TATED WAS PURCHASED FR OM DANNY DORRIS. YOU R AFFIANT LATER FIELD TESTED THE SAID MARIJUANA WHICH FIELD TESTED POSITIVE AS MARIJUANA A SCH. VI CONTROLLED SUBSTANCE. FURTHERMORE YO UR AFFIANT AND OTHER MEMBERS OF THE 18th JUDI CIALDISTRICT DRUG TASK FO RCE HAVE RECEIVED INFORMATION THAT DANNY DORRIS HAS BEEN TRAFFICKING MARIJUANA FROM HIS RESIDENCE, 199 LA WREN CE TOWN ROAD GALLATIN, TENNESSEE. YOUR AFFIANT ALSO CO NFIRMED THAT DORRIS HAS AT LEAST ( 3) THREE PRE VIOUS ARRES TS AND CONVICTIONS FOR TRAFFICKING OR SELLING MARIJUANA. SAID CON F IDENTIAL AND RELIABLE INFORMANT HAS PROVIDED Y

OUR AFFIANT W ITH INFORMATION THAT HAS BEEN CORROBORATED WITH INFORMATION YOUR AFFIANT FOUND TO BE TRUE.THE CONFIDENTIAL AND RE LIABL E INFORMANT HAS NEVER GIVEN YOUR AFFIANT INFORMATION THAT WAS FOUND TO BE FA LSE. The def endant c ontends that this affida vit fails t o establi sh proba ble cause to believe that he was possessing marijuana in his residence under the two-prong standard provided in State v. Jacumin , 778 S.W.2d 430 (Tenn. 1989), for evaluating i nformant hearsay.

In Jacumin , our supreme court held that un der Article I, Section 7 of the Tennessee Constitution probable cause base d upon informant hearsay requires a showing (1) of the informant ’s basis of knowledge an d (2) of either his credib ility or the reliability of his i nformation. Id. at 432, 436. Relative to a search warrant, this

means that a magistrate must make a neutral and detached judgment that the affidavit before him or her shows probabl e cause to issue the warr ant. See State v. Moon , 841 S.W.2d 336, 338 (Tenn. Crim. App. 1992).

As for the informant’s basis of know ledge, the defendant acknowledges that a controlled purchase of marijuana by the inform ant occurred at the defendant’s4

residence, and that the informant said it was from the defendant. The defenda nt also admits that the police aurall y monitored the transacti on by a hidden microphone. However, he claims

that the informant’s “uncorrob orated” assertion that the defendant was the seller makes his basis of knowledge “open to question.” As for the informant’s reliability, the de fendant clai ms that it was not sh own in the affi davit other than through the affiant’s assertion of reliabi lity.

The defendant’s arguments essentiall y carry a standard of absolute certainty that is ali en to search and seizure l aw, which is pri marily based upon reasonableness. The United States Supreme Court has defined probable c ause as “whether at that moment the facts and circumstances withi n [police] knowledge and of which they had reasonabl y trustworthy information were sufficient to w arrant a prudent man in believing that the petitioner had committed . . . an of fense.” Beck v. Ohio , 379 U.S. 89, 91, 85 S. Ct. 223, 225 ( 1964). See State v. Meeks , 876 S.W.2d 121, 124 (Tenn. Crim. App. 1993). Our supreme court has stated:

In dealing with probabl e cause, one d eals with probabilities. These are not technic al; they are the fa ctu al and practical consideration s of everyday life on w hich reasonable and prudent men, not legal technic ians, act. State v. Jefferson , 529 S.W.2d 674, 68 9 (Tenn. 1975).

We believe that as a result of the liv e monitoring of a drug trans action at the residence of the defendant, a known convicted drug dealer, whom the buying informant, a person used by the pol ice to gather information in previous successful criminal drug inv

estigations, said w

as the marijuana seller, th ere was probable cause to believe that the defendant possessed marijuan a, drug paraphernalia, or other evidence of illegal drug dealings so as to justify the issuance of a search warrant for his residence. No further analy sis is needed.5 In consideration of the foregoing , and the record as a whol e, the judgment of conviction is affirmed.

___________________________ Joseph M. Tipto n, Judge CONCUR:

_________________________ Joe G. Riley, Judge

_________________________ Thomas T. W oodall, Judge