# FILED
October 25, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON SEPTEMBER 1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9810-CC-00312 Appellee, ) ) HENRY COUNTY VS. ) ) HON. JULIAN P. GUINN, TINA M. YEOMANS ) JUDGE and DAVID McCLUSTER WADE, JR. ) ) Appellants. ) (Possession of Marijuana)

FOR THE APPELLANT : VICTORIA L. DiBONAVENTURA 104 West Washington Street, Ste. A Paris, TN 38242 FOR THE APPEL LEE : PAUL G. SUMMERS Attorney General and Repor ter J. ROSS DYER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ROBERT "GUS" RADFORD District Attorney General STEVEN L. GARRETT Assistant

District Attorney

General P. O. Box 94 Paris, TN 38242-0094

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE1 Therewas no verbatim transcript of

the proceeding

s available. Appe

llant’s counsel, pursuant to Tenn. R. App. P. 24(c), fileda statement of the evidence. Counsel certified that notice of filing was sent to the state. No objections were filed by the state. Although the trial judge did notapprove the statement, it is deemed approved when the trial judge takes no action within 30 d ays after expiration of the period for filingobjec tion s. Ten n. R. A pp. P . 24(f ). It is the trial court clerk’s responsibility to send such statements to the trial judge. Id
. Although not relevant

to the disposition of this appeal, the parties have made reference to facts not set

for th in the statement of the evidence. The state has made reference to a negativedrug scr

een of the

citize n inf ormant. Although there was a reference to the drug screenin an affidavit in the technical record, it does not appear in the statement of the evidence and was not considered. Counsel and tr

ial c ourts should be aware of the effect of failure to respond to an appellant’s statement of the evidence.

2 Apparently, defendants were living together . Some pleadings indicate Yeomans as “Tina M.Yeomans (Wade).” 2 O P I N I O N
Defendants were convicted by a Henry County jury of simple

possession of marijuana. In this appeal as of right, defendants contend the search warrant affidavit was insufficient to establi sh probable cause. After a review of the record , we AFFIRM the judgment of the trial cour t.

FACTS
Timothy Hasti ngs, t he seve nteen-y ear-ol d son of de

fendant Y

eomans, l eft a “state run half-way house” w ithout permission. 1 Valerie Hancock, tw elve years of age, ran away from her gr andparents’ residence and accompanied Hastings to the defendants’ residence 2 in Paris, Tennessee, hoping to marry him. Hastings told his mother he had been releas ed from the half-way house, and H ancock advised Yeomans she had a note from her grandparents authorizing her to stay two weeks in Paris.

The juveniles ran away from the defe ndants’ residence when defendant Yeomans advised them that she would take Hancock back home the next day. On November 6, 1997, the two juveniles “were found not in school and were taken to3

the juvenile court authori ties.” The juvenile officer learned that Hastings had left the half-way house without permissi on and that Hancock was li sted as a “missing person.”

Hancockadvised thejuvenile officer that she knew wher e some marijuana was located. Deputy Sheriff Scott Wyrick was summoned and informed by Hancock that “marijuana could be found in a black pouch under the couch of the defendants[’] home.” Based upon his conversation with Hancock, Deputy W yrick submitted the following affidav it in support of his reques t for a search warrant: On Novemb er 6, 1997, the affiant interviewed a 12-year-old juvenile whose name was Valerie Hancock. Hancock told the affiant that she had been staying at Tina Yeomans’ re sidence in Henry County, Tennessee. Hancock hadwitnessed Tina Yeomans smoking marijuanainside the residence as l ate as 11-5-97. Hancock had s een Yeomans using and s toring ma riju ana throughout Yeomans’ residence.
Hancockdoes know what marij uana looks like and smells like from being around it before. Juvenile Officer

Kelly Pinson witnessed the interv iew between Hancock and the affiant. Based on Hancock’s information, the affiant does believe that Yeomans has marijuana in her residence. Hancockgives this in formati on willingly and asks for no payment for the information.

The affidavit was executed o n November 6, 1997, and the sear ch warrant was issued by the magistra

te on the same date.

A sea rch of defendants’ home revealed “a black pouch under the couc h containi ng a g reen leafy plant material w hich later tested to be marij uana.” Marijuana was also found i n the master bedroom.4 DEFENDANTS’ CONTENTIONS

Defen dants contend the se arch warrant affidavit was faulty. Specifical ly, they aver the affidavit was insufficient for the magistrate to consider Hancock a “citizen informant,” and her credibility was not sufficiently es tabl ished. D efendants also contend the affidavit omits material information concerning Hanc ock’s status

which was essentia l to the ma gistrate’ s determ ination of reliab ility. We dis agree with defendants’ contentions.

INFORMANT’S STATUS

Information provided by an ordina ry citizen is p resumed to be reliable, and the affidavit need not establish that the source is credible or that the information is reliable. State v. Melson , 638 S.W.2d 342, 354-56 (Tenn. 1982), cert. denied , 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983). On the other hand, if the source is a criminal informant, reliab ility must be determined by the two-pronged AguilarSpinelli test, as adopted by the Tennessee Supreme Court in State v. Jacumin , 778 S.W.2d 430, 436 (Tenn. 1989). Under this test, the affidavit must include “( 1) the basis for the informant’s knowledge, and either (2)(a) a basis esta blishing the informant’s credibility

or (2)(b) a basis establishing that the informant’s information is reliable.” State v. Cauley , 863 S.W.2d 411, 417 (Te nn. 1993)(quoting State v. Ballard , 836 S.W.2d 560, 562 (Tenn. 1992)).

In order for the informant to be considered a citizen informant, the affidavit should co ntain more than conclusionary allegations that the informan t was a

“ concerned citizen source,” “ acted on civic duty, ” and “asked for no payment for theirinformation.” State v. Stevens , 989 S.W.2d 290, 294 (Tenn. 1999). Generall y, a more particularized s howing of the law-abiding natur

e of the person supplying the information is needed. Id . at 295. The reliability of the i nfor mant, as well as the information furnished, mu st be judged from a ll the circumstances and from the5

entirety of the affidavit
. Cauley , 863 S.W.2d at 417. A f inding of probable cause bythe issuing magistr

ate is entitled to great defere nce. Melson , 638 S.W.2d at 357.

We confine our examination to the affidav it itself. The affidavit specific ally names the informant, giving her age. The reason for her presence in defendan ts’ residen ce was se t forth; namely, she had been stay ing at the residence. The informant had personally witnes sed the smoking of marijuana the da y before the affidavit’s swear ing, and had seen it stored. Further, the juvenil e stated that she was familiar with the appearance and smell of marijuana. Unf ortunately , it is not unreasonable to conclude that a twelve-year

-old would be familiar w ith marijuana. Although certainly not conclus ive, the affidavit further s tates that the informant did not seek payment for the information. Even though the age of the i nf ormant is certainlyrelevant, the mere fact tha t the ci tizen was a juve nile, age 12, does not preclude a finding of reliability
. See Easton v. City of Boulder, 776 F.2d 1441, 1450 (10th Cir. 1985)(permissib le to rely upon statements of five-year-old and three-yearold children in issuing arrest warrant). In fact, a finding of probable cause may rest upon evidence which is not legally competent i n a criminal trial. United St ates v. Ventresca , 380 U.S. 102, 107, 85 S.Ct. 741, 1 3 L.Ed.2d 684 (1965).

The information set forth in the affidavit is sufficient to establish the juvenile as a “citizen i nforma nt” and no t a “typ ic al criminal informant or ti pster,” or an informant from the “criminal milieu.” Melson , 638 S.W.2d at 354. Accordingly , the information provided by the juv enile was

credible and provided sufficient probable cause for the issuance of the search warrant.

This issue is without merit.6 OMISSION OF INFORMANT’S STATUS

Defendant next contends the officer misrepresented materi al facts by failing to include that the informant was unknown tothe affiant, was a missing person, had com e to He nry County to marry another juvenile, and w as in the presence of juvenile authoritie s wh en she provided this information. We conclude that the omission of these facts does not affect the v alidity of the search w

arrant.

An affidavit, sufficient on its face, may be impeached only by showing “(1) a false stateme nt made wi th inten t to dece ive the Court , whether material or immaterial to the issue of probable cause,” or “(2) a false statement, essenti al to the establishment

of probable cause, recklessly made.” State v. Little , 560 S.W.2d 403, 407 (Tenn. 1978); see also Franks v. Delaware , 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 ,672 (1978).A facially valid sea rch warr

ant may only

come under attack when the defense establishes that the search warra n t was procured byofficers through perjury or coercion. State v. Cannon , 634 S.W.2d 648, 650 (Tenn. Crim. App. 1982). Allegations of negligence or innocent mistakes are insufficientto invalidate the searc h warrant. Franks , 438 U.S. at 171

. In order to be entitled to relief, a defendant must s how th at the reckless statements were necessary to the finding of probable cause. Id

. at 155-56; see also State v. Smith , 867 S.W.2d 343, 350 (Tenn. Crim. App. 1993). The burden is on the defendant to establish the allegation of perjury or reckl ess disregard by a p reponderance of the evidence. See Franks , 438 U.S. at 156.
Clearly, the defendant

s do not f

all wi thin pur view o f Little in that the affidavit did not contain a “false statement.” Little , 560 S.W.2d at 407. Instead, defendants argue that the “omission” of material facts invalidates the search warrant . Although Franks and Little

concerned only “false st atements,” many cour ts have recognized that the same rationale should ex tend to material omissions i n an affidavit. See 2 LaFave, Search

and Seizure

§ 4.4(b) (3d ed. 1996)(citations omitted). However, an7

affidavit omitting potentially excu lpatory information is less l ikely to present a question of imper missible of ficial conduct than one which affirmatively includes false information. United States v. Atkin , 107 F.3d 1213, 1217 (6th Cir.1997).

We conc lud e the omission of facts relating to the informan t’s status in this case does n ot invalidate the war rant. We first note that the statement of the evidence contains nothing to indic ate that the officer intentionally withheld what he considered to be material information. Altho ugh we agree that an informant’s status, i.e. the facts and circumstances sur rounding th e giving of information, is generallyrelevant to the issue of credibility , a disclosure of this informant’s status would still not reflect that the twelve-year-old was from the criminal milieu; nor would it negate the probable cause justifying the issuance of the search w arrant. Other cases have held that the omission of information concerningthe informant’s status was not fatal t o the search warrant. See United States v. LaMorie , 100 F.3d 547 (8th Cir. 1996)(omission that informant was a convicted felon not fatal); State v. Lease , 196 W.Va. 318, 472 S.E.2d 59 (1996)(omission that informant w as under arrest for public intoxicatio n and marijuana possession a nd in state of extreme agitation at time of statement not fatal ).
Thus, we conclude that even if the omitted information had beenincluded in the affidavit, probable cause sti ll existedfor the i ssuance of the warrant. Accordingly, this

issue is without meri

t.

CONCLUSION

Based upon our careful review of the record, we AFFIRM the judgment of the trial court.8 ____________ _____________

__ _ JOE G. RILEY, JUDGE

CONCUR:

____________________________ DAVID G. HA

YES, JUDGE

____________________________ THOMAS T. WOOD

ALL, JUDGE