### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Novem ber 18, 200 3 Session

STATE OF TENNESSEE v. HAROLD GARLAND MABRY, JR.
Direct Appeal from the Criminal Court for Davidson County No. 2000-D-2024 J. Randall Wyatt, Jr., Judge

No. M2002-01867-CCA-R3-CD - F iled May 13, 2004

The appella

nt, Haro ld Garla

nd Mabry , Jr., pled g

uilty in the Dav

idson Count

y Cr iminal Cour

t to possession of .5 grams or more of cocaine and possession of a fire arm durin g a fel ony . Pursuan

t to the plea agreement, the appe llantreceived a total eff ective s entence

of eigh t ye ars inca

rcera tion in the Tenness ee Depa

rtment of Correct ion. As a c ondition of

his p lea, the appellant reserved a certified question of law concerning the validity of the searc

h warrant underly

ing the search

of his residence. Upon our review of the record and the parties’ briefs, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appe al as of Right ; Judgme nts of the Cr iminal Co urt are Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the cour t, i n which G ARY R. W ADE , P.J, and T HOM AS T. W OODA LL , J., joined. David Vincent (at

trial) and C. Edward Fowlkes (at trial and on appe al), Nashville, Tennessee, for the appellant, Harold Garland Mabry , Jr.

Paul G. Summers, Attorney Gene ral and Reporter; Elizabeth T. Rya n, Sen ior Cou nsel; Vic tor S. Johnson, III, District

Attorney Genera l; and John Z immerman , Assistan t District Attorney Genera l, for the appellee, State of Tennessee.

OPINION

I. Fact ual Backgro und

OnMarch 12, 200 0, p olice, acting pursuant to a search wa rrant, conducted a search of the appellant’s residence. Based upon the results of the search, the appellant was indicted on charg es of possession of .5 grams or more of cocaine with the intent to sell, possession of a firearm during
a felony, possession of drug paraphernalia, and conspiracy to possess 26 grams or more of cocaine with the intent to sell. Subsequently, the appellant filed numerous motions to suppress, alleging that the affidavit supporting the search warrant did not contain sufficient probable cause f or the issuance1 W e note that Ru le 32 (e) of the Te nnesse e Ru les of C r imi nal Procedur e provi des t hat “[a] judgme nt of convi cti on shall s et forth t he plea, the verd ict or find ings, and the ad judic ation a nd se ntence

. . . . The judgme nt s hall be signe d by the judge and entere d by the clerk. ” The July 3, 2002, doc ument did not set fort h the appellant’ s plea, the verdict or f indi ngs, or t he adj udica ti on and s ente nce. Theref ore, the Jul y 3, 2002, document does not com ply with the requ ireme nts for a ju dgm ent of co nviction

. -2- of a search warrant. Upon

the trial court’s denial of the motions to suppress, the appellant pled gu ilty to possession of .5 g

rams or more of co caine with the inte nt to sell and possession of a firearm during a felony. The

plea ag reement specifically

provided that the appellant was “[r]eserving certified issue of law on search issue as set fo rth in mo tion to suppress [and ] further set forth in separa te order to

be submitte d and in corporated into judg ments by refer ence. T his issue is dispositive of the case.” The plea agr eement was filed on May 13, 2002.

OnJuly 3, 2002, the trial court held a sentencing heari ng and decided that it needed more time in which to consider the appropriate sentence for the a ppellant . Accordingly , the trial court advised the parties to return on July 9, 2002, at which time sentenc e would be imposed. During the July 3 hearing, the following colloquy occurr

ed:

Defens e Counsel: If I

may, Your Honor

. I have here the judgment of conviction. The rules on the certified question of law requ ires that it be issued on t

he judg ment. So I’d a sk that be

Page 2 t o the Judgme

nt. Page 1 would be, of course, the –.

Trial Court: Okay. That’s fine . Let’s hear the off icer first. I’ve heard this a little bit

more tha n avera ge, but I – bu t I ne ed to hear every

thing I need to hear. A

nd I’ll be glad to do it.

At the conc lusion of the July 3 heari ng, the trial court signed a document entitled “Judgment of Conviction.” The document stated that the appellant had pled guilty while re serving a certified question of law concernin g wheth er the affidavit

underly ing the s earch warrant

sufficie ntly established probable cause. Specifically, the a ppellant alleged that

the affidavit failed to meet the Aguila r-Spinel li tes t for determining the validity of an informant’s tip. He also alleged that the affida vit co nt ai ne d f

ra ud ul en t o mi ss io ns an d m is re pr es en ta ti on s o f m at er ia l f ac t. Th e J ul y 3 document provided that “[c]ounsel for the Defense, the Stat e and the Court consent to the Reservation of this cer tified question of law and that the question is dispositive of the case.” Ad di ti on al ly, each pa

rty signed t he July 3 document. Finally, the July 3 document did not state the offense s of which

the appe llant was

convicte d and did not refe rence t he plea a greement. 1

Su bs eq ue nt ly, on July 9, 2002, the trial court sentenced the appellant and signed two standard judgmen ts of convic

tion. Thes e judgme

nts of conviction did not set forth the reservation of a certified quest ion of law, nor did the judgments specifically incorporate by

reference the plea agreement

filed on May 13, 2002, or the “Judgment of Conviction” which was filed on July 3, 2002.2 The appellant ’s not ice of appeal s pecifi call y st ated that his ap pea l stemm ed fro m the J uly 3, 20 02, d ocu men t.
-3- Onappeal, the appellant challenges the valid ity o f the sea

rch war rant. 2 The State argues that th e appellant failed to properly certify the

question of law. Before reviewing the appellant’s complaint regarding the sear

ch warrant, we must first determine whether he properly re serv edhis certified question of law.
II. Analysis A. Certified Question

Rule 37(b)(2 )(i) of t

he Tenne ssee Rule s of Crimina l Procedu re provi d es t hat an appellant may appeal f rom any judgmen t of convi ction occ

urring as a result of a guilty

plea if the following require ments are met: (A) The jud gment

of conviction, or other document to which such judgment refer s that is fi led before the notice of a ppeal, mu st contain
a statement

of the certified question

of law reserved by

defendant for appellate review; (B) The question of law must be stated in the judgment or document
so as to identify clea

rly the scope a

nd l im its of the legal issue
reserv ed; (C) The judgment or document must reflect that the certified question was expressly rese rved with the consent

of the state and

the trial judge; and (D) T he jud gment or document must reflect that the defenda nt, the state, and th e tria l jud ge are of the opinion that the certified question is dispositive of the case. Additionally, in State v. Preston , 759 S.W.2d 647, 650 (Tenn. 1988), ou r suprem e court e

xplicitly provided prerequisites to appellate co nsider ation of a certifi ed questi on of law under Rul e 37(b)(2)(i). The court stated:

Regar dless of what

has appe ared in

prior petitions, orders, colloquy inopen court or o therwi se, the final order or judgment from which the time begins to run to pursue a T.R.A.P. 3 app eal must contain a statement of the dispositive certified question of law r eserved by defendant for appella te revie w and the question o f law must

be stated
so as to c lea rly identify

the scope and the limits of the legal issue reserved.-4-

Id. This court has repeatedly cautioned

that “[b]ecau se the pr

erequis ites enunciated in Preston are mandator y, f ailure to properly re serve a certified question of law pursuant to Preston will resu lt in the dismissal of the appeal.” State v. A ndrea Mc Cr aw , No. 03C 01-9 903- CR-00 106, 2 000 WL 250146, at *2 (Tenn. Crim. App. at Knoxville, Mar. 7, 2000) (citing State v. Pend ergra ss , 937 S.W.2d 834, 838 (Tenn. 1996)).

In State v. D anny

Harold O gle , No. E2000-00421-CCA-R3-CD, 2001 WL 38755, at *4 (Tenn. Crim. App. at Knoxville , Jan. 17, 20 01), this c ourt expre ssed conc ern reg arding the inflexible requirements of Preston and its prodigy. Spec ifically, we state d:

Inmany of these c ases the state, defendant and trial court have all agreed (as evidenced by the guilty plea

transcript) that

the question is properly c ertified, only to have the state correctly

argue on appeal that the cer tification was n ot incompliance with Preston , requiring dismissal of th e appeal. . . . Thus, in spite of every one’s earlier agreement

as evidenced by

the transcript of the hearing, the partie s ar e l ef t i n a qu an da ry a nd , a t t he ve ry l ea st , f ac e e ve n m or e d el ay. Based upon the documented appellate history of guilty plea s with certified questions of law, we observe that it has become more of a trap than serving its int end ed purpose. In spite of re peated appella te cautions, th e dictates of Preston are simply not being met and, accord

ing to its h

ist ory , wil l not be met. . . . Unf ortunate ly, it appears there is undue prejudice to the state , crime victims, defenda nts and all involved in these cases bec ause thatwhich has clearly been ag reed upon has not be en writte n on the app

ropriate document at the appropriate time.

Id. At the con clusion of our opinion in Ogle , we urged our supreme court to re examine the requirements for properly certifying

a question of law. Id.

Su bs eq ue nt ly, in State v. Armstrong , 126 S.W.3d 9 08, 912 (T enn. 2003 ), our supreme court again considered the Preston /Rule 37 requirements and concluded that substantial compliance with the dictates of Preston was notsufficient to properly certify a question of law. However, Armstrong provided that a trial court could take corrective ac tion prior to the judgment becoming final in order to comply with Preston

. Armstrong , 126 S.W.3d at 912.

The instant case comes before us in a slightly different posture than Armstrong

. As we noted earlier, on July 3, t

he trial court, needing more time to deliberate sentenc ing issues, continued the appellant’s sentencing hearing until Jul y 9. R egardless, the trial court entere d a “Judgment of Conviction,” detailing the terms of the appellant’s certified que stion of law. The transcript of the July 3 hearin g refl ects tha

t the appe llant’s c ounsel sp ecif ically reque sted that the “Judgment of Conviction” be made “Page 2 t o the Judgment.” On

July 9, subseq uent to sentenc ing the a

ppellant ,-5-

the trial court signed standardized judgment of conviction forms which failed to m ention the certified qu estion of la

w. Additionally, the “Judgment of Conviction” document sig ned on July 3 was not attached to the July 9 documents.

This court has previously c autioned that “we must look t o the substance of a trial court’s ‘curative’ order, r

ather th an to its la

bel, in determining whether it satisfies the Preston requirements.” State v. Pau

l Anthony Wr ight , No. W2001-02574-CCA-R3-CD, 2003 WL 1860526, at *6 (Tenn. Crim. App. at Jackson, Apr . 7, 2003) . The tra nscript o f the July

3 hearin g clea rly refle cts that counsel was aware of the strict requirements of Preston and specifically requested

tha t t he Ju ly 3 document be “Page 2 to the Judgment.” As in Wright , there is no question that “[t]he better practice

. . . would have been fo r the judg ment f orm[s] to reference the trial court’s order cer tifying the question of law.” Id. However, we conclude that the July 3 and July 9 doc uments, which were filed roughly contemporaneously

and contain the agreed dec ision of the pa rties, se rve to properly c ertify the appellant’s question of law.

B. Search

The appellant’s certified question stems from the trial court’s denial of his mot io n to suppress

. In reviewing

a trial court’s determinations regarding a suppre ssion hearing, “[q]uestions of credibility of the witnesses, the weight and value of theevidenc e, and re solution of conflic ts in the evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odom
, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact in a suppre ssion hea

ring wil l be uphel d unless the evide

nce pre pondera tes other wis e.” Id. Nevert

heless, appellate courts will review the trial court’s application of law to the facts purely de novo. See State v. Walton
, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the State, as the prevailing party , is “entitled to the strongest legitimate view of the evidence adduced at the suppression hea ring as well as all reas onable a nd legit imate inferences that may be dra

wn from that evidence.” Odom , 928 S.W.2d at 23.

1. In formant’ s Tip

The appellant’s re si dence was searched pursuant to a se arch warrant and contraba nd was seized. On appeal, the appellant specifically questions whether there was probable cause to support the issuance of the search warra nt. Our supreme court has explained that [t]he Fourth Amendment to the United Stat es Con stitution requires that search warran

ts is sue only “upon proba ble cause, supported by Oath or affirmation.” A rticle I, Section 7 of the Tenne ssee Consti tution precludes the issuance of warrants e xcept upon “evidence of the fact committed.” Therefore, unde r both the federal and state constitutions, no warrant is to be issued except upon probable cause. Proba

ble cause has be en defined as a r easonab le ground for suspicion, supported by c ircumstances indicative of an illega l act.-6-

State v. Henning , 975 S.W.2d 290, 294 (Tenn. 1998) (footnote and citations omitted). Inthis state, “a finding of

probable cause su pporting issuance of a sea rch war rant must be based upon evidence included in awritten and sworn affidavit.” Id. Sp ec if ic al ly, “[i]n order to establish probable cause,
anaffidavit must set forth facts fromwhich a reasonable conclusion may be drawn that the contraband

will be found in the place to be searched pursuant to the wa rrant.” Sta te v . Norris , 47 S.W.3d 457, 470 (Tenn. Crim. App. 2000). We note tha t “‘aff idavits mus tbe looked

at and re ad in
a comm onsense and practical manner’, and . . . the f inding of probable cause by the issuing magistr ate is entitled to great deference.” State v. Brya n , 769 S.W.2d 20 8, 21 1 (Tenn. 1989) (quot ing State v. Melson , 638 S.W.2d 342, 357 (Tenn. 1982)).

In State v. Jac

umin , 778 S.W.2d 430, 436 (Tenn. 1989) , our supreme court espoused the twopronged Aguila

r-Spinel li test “as t

he standa rd by which pr obable c ause will

be measu

red to se e if the issuance

of a sea rch war rant is proper u

nder Ar ticle I, Section 7 of the Tennessee Constitution.” See Spinelli v. United States , 393 U.S. 4 10, 89 S. Ct. 5 84 (1969) ; Aguilar v. Texas , 378 U.S. 108, 84 S. Ct. 1509 (1964). Specifically,“he arsay infor mation suppliedby a confide ntial informant can notsupport a finding of p ro bable cause unless it also contains factual information conce rning the informant’s basis of knowledge and credibility .” Henning , 975 S.W.2d at 294-9 5 (cit ing Jacumin , 778 S.W.2d at 432, 436). However, “independent police corrobor ation of the information provided by the informant may make

up deficiencies in either prong.” State v. Powell , 53 S.W.3d 258, 263 (Tenn. Crim. App. 2000). The Jacumin court cautioned against apply ing the Aguila

r-Spinel li test in a hypertec

hnical fashion. See Jacumin , 778 S.W.2d at 436.

This court ha s expla ined that “[u]nder the . . . ‘basis of knowledge’ prong, f acts must be
reve aledwhich p ermit the magistr ate to determine w

hether t he infor mant had a

basis for his informationor claim regarding cr iminal conduct.” State v. Lowe , 949 S.W.2d 300, 304 ( Tenn. Cri m. App. 1996 ); see also State v. Moon , 841 S.W.2d 336, 338 (Tenn. Crim. App. 1992). Sp ec if ic al ly, “[t]he informant must describe the manner in which he gathered theinformation, or the informant must describe the criminal activity with great particularity .” State v. Steven Woodard , No. 01C01- 9503-CR-00066, 1996 WL 76022, at *2 (Tenn. Crim. App. at Nashville, Feb. 23, 1996).

The second prong of the Aguila r-Spinel li test, sometimes referred to as the reliab il it y, ve ra ci ty, or cred

ibility prong, deals wit

h the truth fulnessof the inf ormant. U

nder this prong, “facts must be reve aled whic

h permit th e magis trate to d etermine either the inhere

nt cred ibility of the informant or the reliability of

his information on the particular occasion.” Moon , 841 S.W.2d at 338.

Before applying the Aguila r-Spinel li test, we m

ust first e xamine the c ontents of the af fidavit writtenin support

of the se arch wa

rrant. The aff

idavit, which was prepared by Officer John Donegan on March 12, 2000, provided:

1. On or abo

ut the mi ddle part of

February your aff iant and other officers began a d rug i nvestigation involving Bobby Mangrum. At that time information was supplied by a confide ntial informant who-7- stated that he/she could buy coc aine and marijuana from Mr. Mangru m.
2. On or about February 18 th , 2000, y

our aff iant met with said individual who then made con tact with Mr. Mang

rum in regards to making a purchase of coca ine and marijuana. Your affiant supplied said informant with marked v i ce funds along w ith being fitted wit h
a recording device and a tra nsmitting device. The C.I. was then searched for any c ontraband prior to the deal, he/she had none on his/her person. The informant was directed by Mr. Mangru

m to come to 2750 Penn Meade Dr. to take delivery of said drugs. Your affiant and other officers assisted in the surveillance of said re sidence and did follow[] the C.I. to that location and onc e i nside did monitor a conversation

betwe en Mr . Mangrum and the C.I. de aling with the cocaine and mari

ju ana. Once the C.I. left that location he was followed a short distance away

and was checked

for any c ontraband. Yo u r affiant recovered the drug s that had been discussed by Mr. Mangrum and the C.I. Your affiant turned these drugs into the metro police property room whe re they we

re sent to the T.B.I. lab f or analy sis.

3. On 3-11-00 your a

ffiant again met with the same said C.I . i n regards to making a purchase of marijuana from Mr. Mang rum. Mr. Mangrum di rec ted th e C. I. to go to 298 Hickory Hollow Terr[ace] and pick one pound

of marijuana up from the occupa nt of the a partmen t. The C.I. was aga

in f it ted with a transmitter and a recording devic e and searched before g oing to that address for co nt raband. Your affiant and other officers maintained constant visual contact with the C. I. until he/she went inside of 298 Hickory Hollow Te rrace. During the C.I.’s time inside said location y our affiant an[d] other offi cer s monitored

the transmitter and heard the transaction of

the drugs take place. The C.I . was the

n followe d to a

pre determined location where O fficer Burchwell recovered a

pprox. one pound of marijuana from him/her.

4. Your affiant and other officers obser ved three ma le subjec ts exit 298 Hickory Hollow Te

rrace a short time later. These subjects were stopped a short distance away

for investigation. It was lea rned during this stop that one of the passengers was the person who lived at

298 Hickory Hollow Terrace a Mr. Keomuang tai. Officers asked for consent to [search] that location but were refused. Your aff iant and other office rs then we

nt to that lo cati on to sec ure it until a search warrant could be obtained.-8- 5. Yo ur af

fi an t o bt ai ne d a se ar ch wa rr an t f or 29 8 H ic ko ry Hollo w Terrace and recovered approx

. 26 pounds of marijuana from that location. While there the cell phone of Mr. Keomuangtai rang several times. Your affiant identified the ca ller as being Bobby Mangrum due to the caller I.D. showing the same number that the C.I. h a d contacted him by. The caller

I.D. also registered the call as being “Bobby’ s cell phone.” Officer Burchwell and other officers took Mr. Keomuangtai’s cell phone and went to the area of 2750 Penn Meade Dr. and waited for Bobby to call once more. Mr. Mangrum called a short time later and was told that Mr. Keomuangtai had bee n arrested and that the p olice we

re on the ir way

to his house. A short time later
a car ar rived at 2750 Penn M eade an

d a male white, l ater identified
as Shane Hur

d, went in side the house and returned to the car a short time later. T

his person was stopped by officers and

was found to be inpossession of three small packets of cocaine. This subject cooperated with police and stated that Mr. Mangrum

had dire cted him to go to his house and retriev e the co caine. Officers were told by
same said person that Mr. Mangrum was at the Waff[le] Ho use a t McGavock

Pike and Pennington Bend. Officers then we n t t o the Waff[le] House and place Mr. Mangrum unde r arrest. After being advised of his rights he was asked for consent to [search] 2750 Penn Meade Dr. but refused.

6. Mr. Hurd

further co-oper ated with office rs in telling them that Mr. Mangrum kept h is marij uana at 298 Hickory Hollow Terrace. Mr. Hurd further stated

that Mr. Mangrum kept his money at his uncle’s hous e for sa fe keeping. Mr. Hurd stated that his uncle owne d a bar
near Harding Place named

Sli ck Willies. Office

r Jesse Bu

rchwell went to tha

t location and was a

ble to identify

Mr. Mang

rum’s unc le with the a ssistance of Mr. Hurd. Officer Bur chwell learned that Harold Mabry aka

“B ubba” was Bobby ’s uncle and introduced himself an d e xp la in ed wh y h e was there. Mr. Mabry stated that he would be glad to go with the officers to [h]is home and give conse nt if they could wa

it until 3 o’clo ck when he closed his bar. Officer Burchw ell agreed to Mr. Mabry ’s offer. Prior t o this agreement Officer Burchwell had sent officers to maintain surveillance on 808 Reischa Ct. i n the e vent s omeon e atte mpted to rem ove an ything. Officer Burchwell advised me that at least two people left from the bar and were attempting to gain entry into 808 Reischa Ct. in an apparent attempt to remove contraband or money

. At that point officers took those subjects into custody and secured that house.-9-

The search of the appellant’s residence was based

large ly upon the statement by the informan t, Hurd, “that Mr. Mangrum kept his money at his uncle’s house f or safe keeping.” There is no mention in the affidavit of Hurd having been a police informant on a prior occasion. Thus, that basis for esta

blishing his cred ibility is lacking . “Absen

t a sh owing of

informant credibility, the affida vit must show that the inf

ormation g

iven by the infor mant is othe

rwisereliable.” Moon , 841 S.W.2d at 339.

The State argues that Hurd should bedeemed c redible because he made a

statemen t again st penal interest . This court ha s previou sly recog nized that “ admissions

of crime may

carry their own indicia of credibility.” Id. at 340 (e mphasis a dded); see also United Sta tes v. Ha rris , 403 U.S. 573, 584, 91 S. Ct. 20 75, 2082 (1971). Regardless, this court cautioned that “such a conclusion
necessa rily requires the statement against penal intere st be the one which provides the reason for the search.” Moon , 841 S.W.2d at 340. As we note d, the sig nifican t stateme nt underl yin g the ne ed to search the appellant’s residence was “that Mr. Mang rumkept his mo ney

at his uncle’s house for safe k eepin g. ” We question whether the statement was against Hurd’s pe nal interest. Regardless, we conclude that we need not decide this issue b ecause the infor mation g iven by

Hurd was

sufficie ntly corroborated by

police.

Inthe instant case, Hurd not only told police that Mangr um kept his money at the appe llant’s house, he also to ld police that Mang

rum was a

t a specific Waffle House restaurant at the time that Hurd was detained, Mangrum kept his marijuana at 298 Hickory Hollow Terrace, the appellant was Mangrum’s un cl e, and the appellant worked at a bar na med Slick Willie’s. The police proceeded to the name d Waffle

House restaurant and therein discovered a nd arrested Mangrum. Ad di ti on al ly, the police had just discovered a large qua ntity of marijuana at 298 Hic kory Hollow Terr

ace. Further, the police proceeded to Slick Willie’s where they encounte red the appellant and learned that he wa s Mangrum’s uncle. Thus, the information given by Hurd on this occasion

was sufficiently ve

rified by p olice so that the remainder of his information could be deemed re liable. See State v. Natha n Alex Weaver , No. M2001-00873-CCA-R3-CD, 2003 WL 1877107, at *9 (Tenn. Crim. App. a t Nashville, Apr. 15, 2 003). Next, we turn t o whethe r the af fidavit c ontained

a basis o f Hur d’s knowledge.

We ac kn ow le dg e t ha t t he af fi da vi t d oe s n ot sp ec if

ic al ly i de nt if

y the s ource of the information contained in Hurd’s statement to police. However, in Spinelli , the Supre me Court explained th at [i]n the absence of a statement detailing the man ner in which the informationwa s g at he re d, it is es pe ci al ly i mporta nt that the

tip describe the acc

used’s c riminal a ctivity in suffic ie n t detail that the magistr ate may know that

he is relying

on something more substantial thana casual rumor circulating in the underworld or an accusation based merely

on an individual’s general reputation.

393 U.S. at 4 16, 89 S. Ct. a t 589; see also Jacumin , 778 S.W.2d a t 432. We conclude th at th e aforementioned

details, which were verified by police and contributed

to the ap pe ll an t’ s c re di bi li ty,-10-

were specific ally

and intima

tely related to th e under lying cr

iminal conduct and indicated Hurd’s personal involvement in the criminal enterprise. See United States v. Smith , 182 F.3d 473, 477 (6 th Cir. 1999) (stat ing “ the degree of detail contained in a tip may be used to infer w hether the informant had a reli able b asis f

or mak ing h is s tatement s ”). Moreover, the affidavit refle cts that police apprehended

Hurd in the act of obtaining cocaine on Mangrum’s behalf. Therefor e, after examining the informant’s tip and the affidavit as a whole, we conclude that the is suing ma

gistra te did not abu se its discretion in issuing the search warrant for the appellant’s residence, nor did the trial court er

r in overruling the appellant’s motion to suppress.

2. False Statemen ts

Fi na ll y, the appellant maintains that “[t]he search warrant is invalid because the underlying affida vit contains recklessly

made false statements essential to the establishment of probable cause.” Specifi ca ll y, the appellant contends that the misleading statement in the affidavit is the alleg ation that “at lea st two peop le left f rom the ba

r and we re attem pting togain entry

into 808 Reischa Court inan apparent attempt to remove contraband or mone y. At that point o fficers took those subjects into custody and

secure d the house .” The a ppellant complain s that one

of the foregoin

g individ uals infact entered the residence a nd then left, while another individual waited in th e vehicle. Ad di ti on al ly, the appellant argues that when the subjects we re apprehe nded, “no contraband or
mone y was found in their possession. . . . This is a fact that should have been included in th e affida vit for the issuing magistrate to consider.” The appella nt furthe r argu es that po lice rec

klessly left out of the affida vit that one of the subjects informed police that he was at the residence to chec k
on the appe llant’s son. The ap pellant r easons that “[w]ithou

t this prem

ise the State has no basis to support the knowledge prong which is otherwise non-existent.”

In State v. L

ittle , 560 S.W.2d 403, 4 07 (Tenn . 1978), o ur supre me court held that “there are two circumstances that authorize the impeachment of an aff idavit sufficient on its face, (1) a fa lse statement made with intent to deceive the Court, whether material or immaterial to the issue of probable cause, a nd (2) a f alse stat ement, essential to the esta blishment o f probab le cause , reckle ssly made.” This cou rt has observed that the same rationale of the Little test extends to material omi ssions in an affidavit. See State v. Yeomans , 10 S.W.3d 293, 297 (Tenn. Crim. App. 1999 )

. “However, an

affidavi t omitting

potentia lly e xculpator y in formation is less lik ely to prese nt a question of imperm

issible of ficial c onduct tha

n one whic

h affirmatively

includes false information.” Id. The appellant bears the burden of establishing the allegation of perjury or reckless disregard by a preponderance of the evidenc e. Id. At the supp

ression h earing

inthe instant ca se, John Edw ards and Victor D arry

l Greenf ield testified that they went to the

appellant’s house at

12:15 or 12:30 a.m. to “drop money off ” for “[t]he kids” to pur chase pizza. Edwards went into the house while Greenfield waited in the ve hicle. Edwards denied removing any thing from the residence.

Detective Burchwell testified that three people left Slick Willie’s after police spoke with the appella nt. The ind iv iduals we

re Edwa rds, Gre enfield , and Chri sty Brown. Detecti

ve Burc hwell-11-

explained that Edwards and

Brown a ttempted t

o enter th e appell ant’s re sidence . After t he subjec ts
were detaine d, it was di scovere d that Br own posse ssed the k

ey s to th e appellant’s safe where the contraband

was ultima

tely discover ed. Dete ctive Bu

rchwell also related that

the babysitter who wa s staying at the appellant’s residence told him that she heard someone come in the house. That person made a telephone cal l and sta ted to the person on the other end of the line that he possessed the wrongset of keys, explaining that the ke y ring did not have

a Harley- Davidsonemblem. Detective Burchwell noted that Brown’s key ring had a Harley

-Davidson emblem.

At the conc lu s ion of the suppression hearing, the trial court issued an orde r denying the appellant’s motion to sup press. Therein, t

he trial court im

plicitly accre dited the testimony of Detective Burchwell. The trial court noted that “[w]hen maintaining surveillance on the 808 Reischa Courtresidence, police observed at least two (2) people leaving a bar and a ttempting to gain entry into the 808 Reischa Court residence in an apparent attempt to

remove evidence from the house.” Thus, it appears that the trial court determined that the contested statement was not false and did not misrepresent the facts. We agree

. See State v. Leon Hurd , No. E1999-01341-CCA-R3-CD, 2001 WL 348871, at *6 (Tenn. Crim. App. at Knoxville, Apr. 10, 2001). Moreover, we conclude that the omission of Edwar

ds’ alleged reason for being at the residence did not call into question the accuracy of th e a ff id av it . A cc or di ng ly, the appella nt has fa iled to impe ach the v alidity of the se arch wa

rrant.

III. Conclusion Based upon the foregoing , we affirm the judgments of the trial court.

___________________________________ NORMA McGEE OGLE, JUDGE