# FILED
December 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JULY 1998 SESSION

STATE OF TENN ESSEE, ) No. 02C01-9709-CC-00363 ) Appellee ) ) Henry County vs. ) ) Honorable Julia n P. Guinn, Judge WILLIAM DORR IS BUCY, II, ) ) (Possession of marijuana w ith the Appellant. ) intent to deliver or s ell; possession of ) drug paraphernalia)

FOR THE APPE LLANT: FOR THE APPELLEE: MATTHEW M. MADDOX JOHN KNOX WALKUP MADDOX, MADDOX , & MADDOX Attorney General & Repor ter P. O. Box 430 Huntingdon, TN 38344 MARVIN E. C LEMENTS Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Ave. North 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 ROBERT “GUS” RADFORD District Attorney General P. O. Box 686 Huntingdon, TN 38344 TODD ROSE Assistant District A

ttorney General P.O. Box 94 Paris, TN 38242

OPINION FILED: ____________________
AFFIRMED JAMES CURWOOD WITT, JR. JUDGE1 Tenn. Code Ann. § 39-17-417 (a)(4)(g)(1) (1997).
2 Tenn. Code Ann. § 39-17-425 (1997).
3 According to the warrant, the magistrate granted the officer’s request at 4:15 p.m. on April 9, 1996. Several officers w ho testified at the suppression hearing, how ever, stated that the searc h began as early as 3:00 p.m. 2 OPINION

A jury in the Henry

County Circuit Cou rt con vict ed the defendant, William Dorris Bucy, II, of possession of more than one-half ounce of marijuana with the intent to manufacture, deliver, or sell, 1 and possession of drug paraphernal ia. 2 The trial court sentenced the d efendant to one year for possession of mari juana, a class E felony, and to a co ncurrent sentenc e of eleve n months a nd twenty-nine days forpossession of drug paraphernal ia, a class A misdemeanor. The trial court ordered the def endant t o serve six months of his sentence i n the county jail and the balance on intensive probation. In addition, the trial jud ge imposed fines of $5,000 and $750. In this appeal, t he defe ndant contends that the trial court erred in denying his motion to suppress the mater ials obta in ed through the use of invalid search warrants and that the tr ial court ab used i ts discretion in admitti ng various irrelevant

but prejudicial items i nto evidence. We affirm th e defendant’s convictions.

I. Facts The defendant does n ot challenge the sufficiency of the evidence; however, in order to place the legal issues in context, we begin with a review of the facts. On April 4, 1996 at 4:15 p.m., Gary Vandiver, an investigator for the Henry County’s Sheriff Department, requested and r eceived a warrant to s earch a residence at 85 Puryear Crossland Road for explosives. He requested the war rant based on information that the defend ant ha d stolen explosives from the National Guard. 3 A number of other officers met Vandive r at the Bucy residence w here the defendant lived with his parents. Shortly thereafter, the defendant drove past and the officers stopped his car and placed him under arrest. During the search of the defendan t’s b edroom, the o fficers disco vered three plast ic baggies contain ing a4 The second warrant was issued April 9, 1996 at 6:05 p.m.
5 We agree. See Wong Sun v. United States , 371 U.S. 471, 485, 83 S. Ct. 407, 417 (1963); Williams v. State , 854 S.W.2d 102 (Tenn. Ct. App. 1992). Therefore, we need not discuss the second warrant in any detail. 3 combined total of sixteen grams of a l eafy green substance and n umerous other itemsthat could be related to the illegal use of drugs or to the drug trade. The officers then secured thehouse and obtained a warrant that would allow th em to search forand seize the controlled substances and related drug paraphernali a. 4 As
a result of the second search, the officers seized numerous items including a set of electronic scales, several hemostats, three film canisters containing seeds, a plastic bag with a wh ite powder residue, a roac h clip, rolling paper

s, a smoking pipe, a “dugout,”a pocket hitter, a Crown Royal bag, small plastic bags , several photographs, a 1992 edition of the Paris Post Intelligenc er , and the six

teen grams of a leafy substance which w ould prove

to be mariju ana. Virtua lly all o f these items
were found in the defendant’s bedroom. The police also confiscated $166 in cash that the defendant had on his person. Except for a single detonator cap on an end table in the living room,no explosives or other items relat ed t o explosives were found.

The grand jury indicted the defendant for possession of more than a hal f ounce of marijuana with the intent to manufa cture, deliver, or sell and fo r possession of drug paraphernalia. Defense couns el moved to s uppress the i tems seized from the defendant’s bedroom contending that th e first search warrant was facially invalid because the affidavi t does not identify th e i nformant as either a citizen or a confidential informant, the inform atio n in the affidavit is stale, the affidavit on its face does not provide sufficie nt probable cause to believ e that the Bucyresidenc e c ontained “explosives ,” and the description of the pr operty to be seized is too general. At the s uppression hearing, the defense and the state stipulated that if the original war rant were invali d, the second warrant obtained as
a result of the search under the a uthority of the first warrant would also be invalid. 5 The defendant also argued that the affidavi t containe d false statements. At the4

c onclusion of the hearing, the trial judge found that the state’s witness es wer e credible and logical andthat the defense witnesses were l ying. He concluded th at the office r did preci sely wh at he should have done with the informati on he had at his fingertips and overrul ed the defendant’s motion. The trial court made no specific factual findings and drew no le gal conc lusions concerning the defendant’s allegations of insufficiency of the affidavit.

At trial, several police officers testified for the state. The marij uana as well as the other property se ized in the raid wa s admitted into evidence. The defense called two witnesses. A neighbor testified that th e police had arrived at the Bucy h ouse before 2:00 p.m. on the day of the sear ch, and Investigat

or Gary Vandiver testified that according t o the warrant, it w

as issued at 4:15 p.m. The jury found the defenda nt guilty on both co unts. After a se ntencing hearin g, the trial court sentenced the defendant to serve an effective o ne- year sentence in split confinementwith six months in the coun ty ja il and the remaind er on inte nsive probation.
II. The Validity of the First Search Warrant

In this appeal the defendant contends that the pr operty seized from his home should have been suppressed.He arguesthat the original searc h warrant
was based upon an affidavit that was insufficient on its face t o establish probable cause, that the language in th e warra nt and the affidavit does not descr ibe the property to be seized w ith pa rticularity, and that the affidavit contains false information.
I n determining this issue we are bound by certain well-establish e d rules governing appellat e review in such cases. A magistrate’s decisi on to issue a search warrant requires the exercise of

judicial discretion and constitutes a judicial act. Hampton v. S tate , 148 Tenn. 155, 252 S.W. 1107 (1923). Although the magistrate’s judgment is entitled to great deference, State v. Melson , 638 S.W.2d 342, 357 (Tenn. 1982), an appellate court may invalidate a search warrant whenthe5

contentof the affi davit c onsider ed by th e magis

trate i s insuff icient, a s a matter of law, to satisfy the constituti onal requirements of probable c ause. State v. Longstreet , 619 S.W.2d 97 , 98-99 (Te nn. 1981). Affidavits giv en in support of search warrants

should be “looked at and read [by an appellate court] i n a common sense and practical manner.” Melson , 638 S.W.2d at 357. The affiant’s words should be giv en t heir natural meaning and int erpretation. State v. Smith , 477 S.W.2d 6, 8 (Tenn. 1972).

The affidavit must set forth on its face facts which establish probable
cause before a search w arrant may issue. Tenn. Code Ann. § 40-6-104 (1997); Tenn. R. Crim. P. 41(c). J udicial review of the existence of probable cause does not include looking to other evidence known or pos sessed by the issuing magi strate or the affiant. State v. Moon , 841 S.W.2d 336, 338 (Tenn. Crim. App. 1992); State v. Jacumin , 778 S.W.2d 430, 432 (Tenn. 1989).

In this case, the defendant contends that the affidavit given in support of the issuance of the search war rant was insufficient

as a matter o

f law to satisfy the probable cause requirement of article I, section7 of the Tennessee Constitution. The affidavit in question states :

Affiant recieved information from Chr istina Yoke that

on or about first week of

March, 96 William Dorris Bucy, II, also known as Bi lly Bucy, gave her three ziplock plastic bags containing Dynamite. Bucy asked her to keep it forhim. Bucy told her that h e stol e this from the National Guard and that he had stolen other things from National Guard w hen he was [a] memb er about two years ago. Christina Yoke kept Dynamite in her home at 1885 Puryear

Crossland Rd. On or about last w eek of March Christina Y

oke and Adam Kenne dy to ok Dynamiteand l eft it off of Dumas Rd. Adam Kennedy told Christina Yoke’s mother, Kelly Yoke, about this. KellyYok e called Bucy, who demanded to know ware [sic] Dynamite was, w

anting it back. Out of fear Kel ly Yoke moved Dynamite to Murr ay Ky. On A pr. 9, 9 6, Dep. Stan Pinson, Explosive Expert, located Dyn amite in Murray, Ky, making identification. Due to Bucy making statements to Chris tin a Yoke and Adam Kennedy that h e had more property belongi ng to Nat. Gua rd it is believed that Bucy has more Explosives at his residence. It is great interest in public safety t hat6 See Aguilar v. Texas , 378 U.S. 108, 84 S. Ct. 1509 (1 964) and

Spinelli v. United St

ates , 393 U.S. 410, 89 S. Ct. 584 (1969).

6 the Explo sives b e located due to great danger to the public.
A. Reliability of the Informant First, we address the questi on of whether the affidavit identi fies the affiant’s source as a citizen-informant. When probable cause is su ppli ed by an affidavit and the informan t i s a professional informant draw n from the “criminal milieu,”Tennessee requires the appli cation of the two-pronged Aguilar-Spinelli test. 6 State v. Cauley , 863 S.W.2d 411, 417 (Te nn. 1993); State v. Jacumin , 778 S.W.2d 43 0, 431 (Tenn. 1989). However, when the source of the information is a cit ize n informant, the affidavit is not subj ect to the sam e standard of scrutiny. Melson , 638 S.W.2d at 354. In the case of citiz en-informants, the review ing court mu st determine whether

the issuing magistr

ate had a substantial basis for cr editing the hearsay. Id at 355. (Citations to other cases omitted). That is, w ithin the four
corners of the affidavit, the internal content must intr insically prove

the truth of the citizen’s word. Id . (citations omitted).

Generallya citizen-informant is one who volunteer

s information to the authoritiesspontaneously and from a sense of civic responsibility or forreasons of personal safety rather than for remuneration, re ve nge, or some other advantage. State v. Smith , 867 S.W.2d 343, 34 7 (T enn. C rim. App. 1993 ) (citing State v. Paszek , 184 N.W.2d 836, 842-84 3 (W is . 1971)). The affiant must include in the affidavit statements from which the magistrate may determine whether the source of the information qualifies as a citizen-informant. Smith , 867 S.W.2d at 348. Whether the a ff idavit provides this information directly, by implication, or by inference, is immaterial. Id

. However, the status of the source must beapparent before the less stringent Melson standard may be used to t est the validity of the warrant. Id

.7 In this i n stance, the affidavit does not dir ectly state that the sour ces of the officer’s information were citizen-informants. H owever, the affidavit discloses other relevant facts. Chris

tian (Chr istina) Yo ke is the daughter of Kelly Yoke. At that time, Ms. Yo ke and her daughter liv ed together at an address loc ated not far from the Bucy residence. The w or ds on the affidavit referring to a confidential informantare crossed out. Moreover, from th e facts that Ch ristian Yo ke reports,
one can infer that she was similar to

an “innocent bystander ” who obser

ved some suspiciousactions and reported those action s to the police. Although the words “cit izen-informant”

do not appear, a “common sens e and practical re ading” of th e affidavit demonstrates that Christian Yoke w

as, in fact, a citizen-i nformant and that the affidavit is subject to the l ess rigorous Melson standard. See Smith , 867 S.W.2d at 347. In addition, the affidavit r eflects that the poli ce corrobor ated some

of Yoke’s information by locatin g the dynam ite in Murr ay, Kentu cky. Therefore, we find that the magistrate had a substantial basis upon which to conclude that the information Christian Yoke prov

ided was reliable. Melson , 638 S.W.2d at 355.

B. Staleness Next, we consider whether the information provided by the informants
was too stale to constitute probab le cause for the issuance of a sear ch warr ant. The defendant contends that the informationis five or six weeks old and too stale to support probable cause. After carefully revi ewing the facts and circumstance of this case and considering the applicab le law, we conclude that the age of the information is of n o i mportance in determining whether this particular affidavit establishes probable cause to search the Bucy reside nce.

The circumstances in this i nstanc e ar e rather unusual. The information in this affidavit discl oses that the defendant gave Christian Yoke the three bags containing dynami te sometime duringthe first week of March, 1996. At the same time, the defendant disclosed that he had stolen t he expl osives and “other things” from the National Guard two years earlier. Acc ording to the affidavit,8

the defendant told Yoke that he stil l had some of tho se “ot her things” at his residence. After retrieving the dynamite from the place w here Yoke’s mother

had taken the dynamite, the officer applied for and receiv ed the warrant to search for “explosives” at approximately 4:00 p.m. on April 9, 1996.

Information that is five or six weeks old may or may not be too stale to support probable cause depending upon the circumstances of the case. State
v. Starks , 658 S.W.2d 544 (Tenn. Crim. App. 1983). Stalene ss must be determined on a case by case basis. State v. Meeks , 876 S.W.2d 121 (Tenn. Crim

. App. 1993). When the illegal activity described is ong oing, co urts have generally held that the affidav

it does not become sta le with the passage of ti me. State v. Thomas , 81 8 S.W.2d 350 357 (Te nn. Crim. App. 1991). The issuing magistra t e must consider “whether the crimin al acti vity under inves tigation was an isol ated event or of a protracted and co ntinuous nature, the nature of theproperty sought, and the opportunity those inv olved woul d have had to dispose of incriminating evidence.” Meeks , 876 S.W.2d at 124. Household or personal items are generally not quickly

disposed of an d the time period may

be longer in those instanc es. State
v. Baron , 659 S.W.2d 811, 81 4 (Tenn. Crim. App. 1983). We apons and clothing are also likely to be retained forsome time after a crime. State v. Florence Smith and Oscar E. Smith , No. 01C01-9103-CC-00076, slip op. at 4 (Tenn. Crim. App., Nashville, Oct. 10, 1991). Highly inc riminating or consumable i tems of personal property are less likely

to remain in one place as that which i s innocuous or not consumable. Smith , slip op. at 3-4 (citing 2, W. LaFave, Search and Seizure , Sec. 3 .7(a) (2nd Ed. 1987)). Search w arrants based on information that i s out of da t e maybe invalid. State v. Starks , 658 S.W.2d 544, 546 (Tenn. Crim. App. 1983) (information that was more than two months old when warrant was issuedwas too remote to establish probable cause) ; State v. Norman Curtis, Keith Ch ambers, Gina Chambers, and Shelly Bragg , No. 0 1C0 1-9607-CC-00313 (Tenn. Cri m. App., Nashville, Dec. 1, 1997)(information rec eived one and one-hal f years and six months prior to date of affidavit i s stale).7 See , e.g. , State v. Thomas , 818 S.W.2d 350 (Tenn. Crim. App.

1991) (informant saw a large quantity of cocaine on the premises during the past ten days); State v. Baron , 659 S.W.2d 811, (Tenn. Crim. App. 1983) (informati on about household or personal items not stale after six months) ; State v. Bush , 626 S.W.2d 470 (Tenn. Crim. App. 1981) (informant’s obs ervation that defendant was in possession of ill egal liquor six days earlier not stal e); State v. Ricky C. Conatser , No. 01C01-9602-CC-00050 ( Tenn. Crim. App., Nashvil le, Mar. 27, 1997) (ten-day old informati on indicating the defendant wa s keeping cocaine on the premises not stale); State v. Florence Smith and Oscar E. Smith , No. 01C01- 9103-CC-00076 (Tenn. Crim. Ap p., Nashville, Oct. 10, 1991)(warrant iss ued twelve days after murder not stale as items to be searched were weapons, clothing, and papers lik ely to be retained by the offender), perm. app. denied (Tenn. 1992). 9

Unlike most other cases, the informant in this instance does not allege that she saw

the objects of the proposed search in the defen dant’s residence more than a month before the issuance of the war rant. 7 Sh e claims that the defendant gave her for safekeeping the property that ultimat ely beca me the basis of the search. The defendant also told her that he had “oth er things” stole n from the Guard at home. Nothin g in the affidavit specifi es the n ature of these items; moreover, the search warrant does not permit theofficers to search for these “other things.” Under these circumstances,the claim of untimeliness does not negate the presence of probable cause.

C. Probable Cause

Probable cause for search and seizure purposes means a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to w arrant a cautious person to believe that the evidenc e is in the place to b e searched. Lea v. State , 181 Tenn. 378, 382, 181 S.W.2d 351, 352 (1944). Tennessee law requires that “in de termi ning whether or not probable cause supported the issuance of a search war rant only the information contained within the four corners of the affidavit may be considered .” State v. Dennis Keith and Timothy Collins , --- S.W.2d ---, No. 02SO1-9604-CC-00035, slip op. at 21 (Tenn., Jackson, Sept. 28, 1998) (emphasi s added). Recently our supreme court stated:10 In Tennessee, a finding of probable cau se supporting issuance of a search warrant must be based upon evidence included in a written and sworn affidavit. In deed, an affidavit containing allegations from which the magistrate can determine whether probable cause existsis an indis p ensable prerequisite to the issuance of a search warrant in this State. The affidavit must set forth facts upon which a neu t ral and detached ma g istrate, reading the affidavit in a common sense and practical manner, can find pr obable cause for the issuance of a search warrant. To ensu re that the magistra te exercises independent judg ment, the affidavit must contai n more than mere conclusory allegations by the affiant. State v. Johnny M. Hen ning , --- S.W.2d ---, No. 02S01-9701-CC 00065, slip op. at 7 (Tenn., Jackson, June 22, 1998) ( citations omitted).

The affidavit states that the defendant ask ed the infor mant to keep three plastic bags containin g dynamite for him. He told her that he had stolen the dynamite from the National Guard two years earlier. The defendant a lso told her that he had stolen “other things ” from the Guard and accor ding t o the affidavit, made statements to Yoke and another per son that he had more property belonging to the Guard at his residence. The natural meaning of the language and a common sense, practical reading of the affidav it as a whole confirms that the defendant had possession of dyna mit e and indicates, not only that he had stolen items from the National Guard, but also that he still had at lea st some of these at his residence. Th e confirmed possession of dynamite, a specific f orm of explosive materia l , suggests that t he “othe r things” m ay have incl uded oth er forms of explos ive materials. Although at the suppression hearing Vandiver concededthat Christian Yoke never told him that Bucy had more explosives

at his res idence, the actual possession of stolen dy namite and the

admi ssion s about having other stol en property, while not

overwhelming, ar

e sufficient to establish probabl e cause.

D. A General Warrant The Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution require that items t o be seized pursuant t o a search w arrant must be “particularly described.” Henning , slip op. at 7. Both11

state and federal constitutions p ro scribe general war rants in order to control governmental intrusion upon a citiz en’s privacy and pr

operty rights

and to limit the dis cretion of the officers conducting the sear ch. Henning , slip op. at 10 (citing Marron v. United State

s , 275 U.S. 192, 48 S. Ct. 74 (1927)).

A description is consid ere d sufficient if the executing officer s can identify with reaso nable ce rtainty th e things whi ch they are authorized to seize. Meeks , 876 S.W .2d at 126 (quot ing f r om W. LaFave and J. Israel, Criminal Procedure , § 3.4(f) (2d ed. 1992)). To satisfy the particularity require men t, a reviewing

court shoul d take into ac count the natu re of the items involved. Meeks , 876 S.W.2d at 126. If the purpose is to seize

any pro perty o

f a specified character whi ch, by reason of its character, and of the plac e whe re and the circumstances

under which itmay be found, if found at all, would be illicit,a descript ion, s ave as to such character, place and circumstances, wou ld be unnecessary and ordinari ly impossible. Lea v. State , 181 Tenn . 378, 38 2, 181 S. W.2d 351, 352 (1944).If, however, the item to be seized can ordinarily be found among other lawfully possessed objects of the same

genera l class ifi ca tion or description, then the description requir es greater care. Meeks , 876 S.W.2d at 126.

In this in stance,the sear ch warrant and

the aff idav it use the word “explosives” to describe the property to be seiz

ed. Although the criminal co de does not define “explosives,” Tennessee Code Annotated section 68-105-102(a) defines explosives as “any

chemical compound or other subs tance or mechanical system intended for the purpose of producing an expl osion, or that contains oxidi zing and combustible units or other ingredients in such proportions or quantities that ignition bydetonation may produce an ex plosion capable of ca using injury to per sons or damage to property.” Tenn. Code Ann . § 68-1 05-102(a) (1996). Possess ion of explosives

or explosive compon ents is generally an u nlawful act, alt hough there are statutory defenses to so me such offenses. See Tenn. Code Ann. §§ 39-14-702, 39-8 Similarly, in Lea v. State , 181 Tenn. 378, 181 S.W .2d 351 (1944),

our supreme court held that “ intoxicating liq uors in violation of the l aw “was sufficient even though it did not specifically negate those liquors that could be lawfully possessed s uch as beer, ale, and wine.The phrase “forged t-shir ts” was found sufficient in State v. Ferguson , 703 S.W.2d 179, 180 (Tenn. Crim. App. 1985). 12 17-1302 (1997). The warrant commanded a search for explosi ves that we re possessed “contrary t

o the laws of the State of Tennessee.”

In Meeks , the court concluded that “cash money, pocket books, fire arms, jewelry, checkbo ok and clothing items stol en from Gillian robbery” did not describe the items to be seized w ith sufficient

particularity ex

cept for the checkbook which was clearly id e ntif iable. 876 S.W.2d at 127. This court has held that the phrase “stolen proper ty and drugs” was insuffici ent to meet constitutional
r eq uirements. State v. Johnson , 854 S.W.2d 897, 900 (Tenn. Crim. App. 1993). The words “controlled drugs,” however, may be sufficient to convey the meaning that the drugs are of a danger ous and unlawful nature and to exclude those of an innocentnature such as aspirin. State v. Lewis , 641 S.W.2d 517, 519 (Tenn. Crim

. App. 1982).

The warrant in this cas e des cribes the property to be seized as “explosives

contrary to the

laws of the State of Tennessee.” In Johnson , this court found that the phrase “stolen property and drugs” constituted a general w ar rant, Johnson , 854 S.W.2d at 900, but the court acknowl edged thatwarrant references to “drugs” have been uphel d “because other po r tions of the warrant refer t o the drugs as illegal.” Id . In the present case, the warrant references “explosives” that
are held “contrary to the laws of theState of Ten nessee.” We find that the description of the prope rty as “explosives” i n essence referred to contraband and meets the constitutional requi rement that the property to be seized be “particularly described.” 8

E. False Statements9 If a search warrant is valid on its face, it may be impeached only if

the defense establishes that the affidav it contains (1) a false stat ement, either material or immaterial to pr obable cause, made with the i ntent to deceive the court, or (2) a false statement essential to probable cause th at was recklessly made. State v. Little , 560 S.W.2d 403, 40 7 (Tenn. 1978).

10 At the suppression hearing , Christian Yoke testi fied that she did not know where the defendant had obtained the dynamite. She said that she just assumed that he had stolen it from the N ational Guard about two y ears ago. She also denied telling the officer that the defendant said he had stole n other property from the National G uard. Kelly Yoke, C hristian’s mother, testified that she was the one who had placed the dynamite on Dumas Road and that Bu cy had never indicated that he w anted the explosives bac k. Gary Vandiver, on the other hand, testified that the Yok es gave him the information c ontained in the affidavit. 13

The defendant complains that the search w arrant affidavit contained false or misleading statements; however, we concl ude that the defense has failed to establish that the affidavit contains any false statements at

all. 9 The trial judge,
as the trier of fact, weig hed the testimony, determined the credibility of the wi tnesses and resolved the inconsis tencies in the evidence i n favor of the state. The trial court found that the Yokes’ testimony w

as not credible and that the Yokes
were willing to perj ure themselves to help the defendant

. 10 Because a trial court’s det ermi nation at a suppression hearing is presumptively c orrect on appeal, State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994), the findings are binding upon this court unless the evidenc e contained i n the record preponderat

es against them. Stephenson , 878 S.W.2d at 544; State v. Aucoi n , 75 6 S.W.2d 705, 710 (Tenn. Crim. App. 1988). The trial c ourt’s determination that the a ffidavit contained no false or misleading informatio n will not be disturbed on appeal.

II. The Second Warrant When the i nvalid warrant w as executed, the officers disc overed contraband consisting of marijuana and o ther drug-rel ate d materials. A second warrant permitt ing the of ficers to seize the unlaw ful materials was then is sued. The parties agreed that had the first warrant been invalid, the second warrant would also be invalid as “fruit of the poisoned tree.” The defendant has made no attack
on the second warrant exce pt the attack on the first war rant as a predicate for the second warrant. Having determined that the first wa rrantwas valid, we find that the14

discoveries

made pursuant to its execution supplied probable cause for the issuance of the second warrant which authorized the seizure of the marijuana and other drug paraphernalia.
III. Relevancy of Evidence The defendant challenges the relevancy of various items that the trial court admitted into evidenc e over his objections. The items includ e a plastic bag with a white powder

residue, a 1992 edition of the Paris Post Intelligencer, business cards, a hunting and fishing license, and a pl astic bag with some leafy material in it. The police seized all of thi s evidence during the search at the Bucy r esidence.

Rule 401 of the Tennessee Rules of Evidence def in e s relevant evidence as “evidence having any tendency to make the exis tence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Relevant evidence is a dmi ssible unless it is prohibited by constitution, rule, or court d ecision , and irrelevant evidence is inadmissible. Tenn. R. Evid. 402. However, relevant evidence may be excluded if its probative value is

substantially outw

eighed by the danger of unfair prejudice, confusion of the issues, or mislea ding the jury. Tenn. R.Evid. 402.

In this case, the state was required to prove th at the defendan t possessed the marijuana with the intent to manufacture, sell, or deliver, Tenn. Code Ann. § 39-17-417(a)(4), (g) (1) (1997), and that he possessed drug paraphernalia with the intent to introdu ce a controlled substance i nto the human body. Tenn. Code Ann. § 39-17-425(a)(1) (1997).We find that the plastic bags, the hunting and fishing license, and the business cards wer e properly admitted. The new spaper article and the bags with the uni de ntified w hite residue and leafy material should have been excluded.15 The numerous small plastic bags, which the state’s w itnessestestified
are often used to package a controll ed substance, were relev ant to the question of the defendant’s intent to sell or de liver marijuana. The fact that these baggies were found in proximity to

electronic scales, seeds for the propagation of marijuana, and
a larger bag containing sixteen grams of marijuana make the plast ic bag s particularly rele

vant. The trial court di d not err in admitting them into evidence.

The hunting and

fishing li cense and the business ca rds were o f some probative value to demonstrate that the bedroom in which the i ncriminating materials were found belonged to the defendant. However, even if the license and the cards were of no probative value, we ca nnot see how the admission of such i nnocuous evidence could have been prejudicial to the defendant. S ee Tenn. R

. App. P. 36(a).

The 1992 edition of the Paris Post Intelligencer reported at length on the destruc

tion of a large crop of marijuana i n Henry County. The article concerned events unconnected with the defendant that occurred approximately four years prior to his arrest for these offenses and addr essed no issuerelevant to the case. The state argues that article demonstrated the defendant’s long-standing inter est in the drug trade. We find that, in this instance,the unfair prejudicial effect of the rather sensational article substantially outweighs its minimal probative value. Tenn. R. Evid. 403.

The admission of the small plastic bags containin g the unidentified materials is not as easily res olved. The bag containing the whitepowder r esidue is of particular concern because it is evidence of another crime and subject to the requirements

of Rule 404(b). The rule requires a jury-out hearing a nd specifi c determinationsby the trial judge. The record indicates that the tr ial cour t did not11 The trial judge summarily denied the defendant’s motion in limi ne because it was filed on the da y of trial, and when the defense objected to the admission of the bag with the white powder on the g rounds of relevancy, the court overruled the obj ection stating, “Let’s hear what the man has got to say.”

12 Scott Wyrick, the officer who seiz ed the bags, testified that the residue of white powder was too small to be tested

.

16 fulfill these requirements. 11 Without a hearing and appropriate findings, the bag with the white powder resi due was inadmissible. M oreover, the fact that the material in neither bag was identified as c ontaining a controlled

substance greatly r

educes the proba tive value of the evidence. 12 Pursuant to Rule 403, both bags sho uld hav e been excluded because their probative value w as substantially outw

eighed by

the danger of unfair prejudice.

Although the trial judge should not have admitted the 1992 newspaper article and the two bags containi ng unidentified material, the de fendant is not necessarilyentitled to relief. The Tennessee R ules ofAppellate Procedure prov ide that a final judgment shall not be set aside “unless, considering the whole record,
error involving a subs

tantial right more probabl y than not affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(a). Giv en the strength of the state’s case against the defendant, the admission of the newspape r article and the two plas tic bags could not have affected the jury’s verdi ct.

Conclusion The judgment of the trial court i s affirmed.

________________________________ JAMES CURW OOD WIT T, JR., Judge CONCUR:

______________________________ JOE G. RILEY, Judge

______________________________ ROBERT W . WEDEME YER, Special Judge