# FILED
October 19, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9707-CC-00260 Appellee, ) ) Bedford County V. ) ) Honorable W illiam Charles Le e, Judge ) WILLIAM JOEL H AITHCOTE, II, ) (Possession of Cocaine for R esale) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: John H. Norton, III John Knox Walkup Norton & Smith Attorney General & Reporter One on the Square Shelbyville, TN 37160 Timothy Behan Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 Willi am Michae l McCown District Attorney General Robert G. Crigler Assistant District A

ttorney General One Public Square, Suite 101 Shelbyville, TN 37160

OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge

O P I N I O N-2- In August 1996, William Joel Haithcote I I, was indicted for posses sion of cocaine with intent to s ell, the manufacture of “crack” cocaine, possession of marijuana, and possession of drug paraphernalia. The trial c ourt denied the appellant’s motion to suppress evidence seized from his home pursuant to a search warrant. The appel lant pled guilty to po ssession of cocaine with intent to sell; the state dismissed the other charges. Pursuant to Tennessee Rule of Criminal Procedure 37(b) (2)(I), the appellant cer tified the question of the val idity of the search warrant to thi s Court. The appellant states the issue for our review as follows: whether t he affidavit submitted in support of the search warrant demonstrates that Officer Wilkerson had a reasonabl e basis for believing that crack cocaine was bei ng prepared in the appellant’ s kitchen. The judgment of the trial court is affirmed.
On February 26, 1996, Officer James W ilkerson and Detective Nick Worthington of the Shelbyvi lle Police Department w

ent with D eputy Jimmy Parker of the Bedford County Sheriff’s Departm ent to the appellant’s residence to assist Deputy Parke r in serving an ar rest warrant on the appel lant for assault. Before Deputy Parker ex ecuted the arrest warr

ant, Officer Wilkerson and Detective Worthington positioned thems elves at the rear of the res idence to prevent the appellant from fleeing out the back door. While doing so, Officer Wilkerson saw Bill Rex Adams in the house repeatedly div iding a white pow

der substance into smaller stacks. Adams then placed the plate of w hite powder stacks into the microw

ave. Detective Worthington als o observed this activ

ity. Officer Wilkerson asked Detective Worthington w hat the individual w

as doing. Detective Worthington said that they were processing cocaine into “crack.” Detective Worthington has extensi ve training and experience in drug enforcement. Officer Wilkerson knew that Adams had been involved in pri or illegal narcotics activities.-3- In the meantime, Deputy Park er had placed the appellant in c ustody. The appellant had wisely gone quickly and q uietly with Deputy Parker when Parker exe cuted th e arrest wa rrant. Of ficer W ilkerson and Dete ctive Worthington were left at the scene hav ing observed what they believed to be criminal activity . They decided to get a sear ch warrant, apparently

because they thought that Adams had firearms in his possession. Officer Wilkerson left to g et the warrant. Detectiv

e Worthington stayed at the house to make further observations and to prevent anyone from leaving the house. Shortly thereafter, Adams and two males emerged from the house and got into a Chevrolet Blazer. Detective

Worthington appr

oached the v

ehicle and as ked them to st op. Adams attempted to flee in the vehicle, running into Detectiv e Worthington’s leg with the door of the vehicle. Detect ive Worthington fired his weapon i nto the vehicle, striking Adams in the back.
Meanwhile, Officer Wilkerson went to the police station to dra ft the application for the search warrant. The affidavit given by Officer W ilkerson in support of the warrant prov ides in pertinent part:

3. Immediately prior to

the said Jimmy Parker knocking on the f ront door of the said location to attempt to serve said arre s t warrant, Detective Nick Worthington and I took up a position at the back door of

said residence in order to prevent the subject of the arrest warrant from fleeing from the back door. 4. While I was assisting in secu r ing the re ar portion of the residence there was an individual in said residence know n to me as Bill Rex Adams, i n said residence, repeatedly dividing a white powder substan ce that I believed to be coc aine, into smaller separate stacks a nd once the said, Bill Rex Adams, had divi ded t he white powder subst ance into numerous smaller portions.[sic] I saw him place the plate of white powder stacks into the microwave in sa id residence and at this poi nt I believed him to be preparing Crack Cocaine. The said Bill R ex Adams was kn o wn to me to be involved in illegal narcotic activities prior to this occasion. On the basis of this affidavit, a judge issued a warrant authorizing police to search the appellant’s residence for cocaine base, also kn own as crack cocaine. The execution of the sear ch warrant produced pow der cocaine, drug paraphernalia, and marijuana cigarette butts or joints.-4- The appellant filed a motion to suppres s the evidence seized pursuant to the execution of the search w arrant. He alleged that the search warrant w as issued without probable c ause and that the warrant w as issued based on materially false statements recklessly made by the affiant. The appellant claimed that all of his blinds were closed so as to pr event any observati ons from the exterior of the house w hen the officers said that they s aw Adams dividing cocaine. The appellant further cl aimed that his dog would have barked if anyone had been as close to the house as th e officers claimed that they w ere. After conducting a lengthy evidentiary hearing , the trial court denied the motion. The court found that no statement was r ecklessly made and that no i nformation was illegally obtained. The court raised the issue of whether the affidavit containe d an adequate basis to support Officer Wilkerson’s statements. After concluding that the police officer was not required under the law to state the basis of his knowledge, the court further denied the appellant’s motion to suppress.
On appeal, the appellant contends th at the trial court erred in overruling his motion to suppress because Officer Wilkerson did not provide a basi s in the affidavit for his conclusion that drug activity was taking place. The appellant contends that Officer Wilkerson did not state w hy he believed that the w hite powder substance was cocaine and why he beli eved that Adams was prepar ing crack cocaine. The appellant further argues that because Officer Wilkerson did not state in the affidavit that he w as relying on Detec

tive Worthington’s expertise, that evidence cannot be consi dered by this Court.
The state contends that the analys is in State v. Jacumin , 778 S.W.2d 430 (Tenn. 1989) requiring an aff iant to establis h the veracity and ba sis of knowledge of the source of information in the affidavi t does not apply because the information contained in the affidavit did not come from a confidential informant

.-5- The state contends that the information i n the affidavit establishes that the affiant had probable cause to believ e that criminal activi

ty was afoot. We agree.
An affidavit is a prerequi site to the issuance of a searc h warrant. See Tenn. Code Ann. § 40-6-103 (1990); State v. Johnson , 854 S.W.2d 897 (Tenn. Crim. App. 1993). The contents of the affidavit must establish probabl e cause. See Tenn. Co de Ann. § 40-6-104 (1990); T enn. R. Cri m. P. 41(c ). “Genera lly, probable cause is a reasonabl e ground for suspicion, suppor ted by circumstances indicative of an illegal act.” Johnson , 854 S.W.2d at 899. “Only the probability, and not a prima facie showing of criminal activity is the standard of probable cause.” State v. Moon , No. 01C01-9401-CC-00 023 (Tenn. Cr

im. App. filed at Nashville, Sept. 1, 1994). Looking only at the affidavit, we concl ude that Officer Wilkerson’s statements based on his observations establis h the pr ob ab il it y t ha t c ri mi na l a ct iv it

y w as occu rr in g i n t he

ap pe ll an t’ s r

es id en ce . We must next determine if the officer w as required to state w

hy he thought that he saw cocaine and why

he thought that he observed the processing of cocaine i nto crack cocaine.
When an affiant relies upon information obtained from a confidential informant to establish probable cause, the inf ormation in the affidavit must establish the basis of the informant’ s knowledge and ver acity. See Jacumin , 778 S.W.2d at 436. This probable cause requirement is generally referr ed to as the two-pronged Aguilar-Spinelli test. See id. “Where the information that the warrant is based on comes from a ‘citizen informant,’ or [an] ‘informant not from the criminal milieu,’ the two-pronged test does not apply, and there is a presumption that the information is reliable.” State v. Moon , No. 01C01-9401- CC-00023 (Tenn. Crim. App. fil ed at Nashville, Sept. 1,1994).

In State v. Kennedy , 649 S.W.2d 275, 27 9 (Tenn. Crim. App. 1982), overruled on different grounds by State v. Holt , 691 S.W.2d 520 (Te nn. 1984),-6- the affidavit in question cont ained a statement from a sheriff that he had observed marijuana plants growing on the defendant’s property. The defendant challenged the legalit

y of the warrant because the affidavit failed to state how the sheriff knew that the plants w ere contraband. The Court stated that it was not necessary for the affiant to indic ate how he knew that the pl ant material he observed was marijuana. “To require the affiant to be absolutely certain would require laboratory testing. This is not necessary to establish probable cause.” Id.
Similarly, under the facts in this case, where the affiant is a law enforcement officer and his information is based on personal observati ons and establishes the probabilit y of criminal activi

ty, the officer is not req uired to state the basis of his knowledg e.
The judgment of the trial court is AFFIRMED.

_____________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

__________________________-7- DAVID G. HAYES, Jud ge

__________________________ JERRY L. SMITH, Jud ge