# FILED

September 10, 1997
Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON MAY 1997 SESSI ON
STATE OF TENNESSEE, * C.C.A. # 02C0 1-9603-CR- 00083 Appellee, * SHELBY COUN TY VS. * Hon. Jam es C. Bea sley, Jr., Ju dge CLEOPHES CARTER, * (Cert ifie d Que stio n of Law) Appellant. *
For Appellant : For Appellee: Cleophes Car

ter (Pro Se) Charles W. Burson 201 Poplar Avenue, 5-E Attorney Gen eral & Repor ter Memphis, TN 38103 (on appeal) Ellen H. Pollack Assistant Att orney Gener al William Nowlin, Att orney 450 James Roberts on Parkway 100 North Mid America Mall Nashvil le, TN 37243-0493 Memphis, TN 38103 (at trial) Janet Shipman Assistant D istrict A

ttorney Gener

al Shel by Cou nty Dis trict Atto rney General's Office 201 Poplar Avenue, Third Floor Memphis, TN 38103
OPINION FILE D:_____________________

AFFIRMED

GARY R. WADE, JUDGE1 The singl e issue addressed i n thi s opini on does not appear t o have been pr operl y r eserved under t he gui deli nes set out in Stat e v. Preston , 75 9 S .W .2d 64 7 (T en n. 1 98 8) an d re -e sta blis he d in Stat e v. Pendergrass , 937 S. W .2d 834 ( Tenn. 1996); however, the i ssue was not a ddressed i n eit her brief. T hus , we h ave add res sed the m erits. C.f. , Bo wlin , 871 S.W .2d 1 70 (T enn . Crim . App . 199 3).
2 OPINION The defendant, Cleophes C arter, was indicted on two charg es of unlawful poss ession of a contr olled substanc e with the intent to sell and deliver

. When a defense motion to suppress ev idence was overrul ed by the tr ial court, the defendant, who had been apprised of his r ight to res erve a dis positive issue for appeal, entered a p lea of guilt t o the unlawful possession of marijuana with the intent to sell , a Class E felony, and the unl awful possess ion of cocaine les s than one-half gram, a Class C felony . The trial court imposed sent ences of one year and fou r years resp ecti vely.

The single i ssue presented for review is whethe r a search w

arrant for the residence of the defendant had been val idly is sued. 1 We find no error and aff irm the judgment of the t rial court

.

On March 23, 1 994, and based upon in formation provi ded by Detective Paul Harvey, a search warr ant was is sued for the resi dence and the outbuildings at 1709 Kend all in Memphis. The occupant was described as black male known as

Cleo, six

feet, approximat ely 190 pounds , four gold front teeth, and about twenty-four years of age. The affidavit

provided a s follows: On March 22, 1994, the af fiant talked with a reliable informant of the Memphis , Shelby C ounty, Tennessee, who has g iven the affiant i nformation regar ding ill egal activiti es in connecti on with narcotics traffick ing by t he above named pers on, which has been found to be true and correct and which has resulted in one narco tics seizure of marijuana. This reliable i nformant stated that within the past five days of March 22, 1994, this reliable informant had b een in the above described residence and had seen the above named person stor ing and2 In t his pr o se appeal , t he defendantcit es thr ee issue s: ( 1) whet her t he tr ial court erred by not grant ing t he suppressi on heari ng; ( 2) whet her t he stat e erred in not produci ng the con fi denti al inf ormant; and ( 3) whet her t he judge a bused hi s discr eti on by rel yi ng on i nformati on not pl aced in the affida vit of co m plaint. 3

selling marijuana in t he above descr ibed residenc e.
At the suppress ion hearing it develo ped that Officer Har vey had not previousl y used the i nformant for a search warrant and had based his op inion of reliabili ty on the fact t hat he had monitored the purchase of marijuana by the confidential informant

from the defendant on the day before the search warrant was issued; the marijuana was, of course, thereupon seized. The record establ ishes that the purchasedid not resul t in an arrest of the defendant. The searc h of the property pursuant to the warrant yielded two pounds of m arijuana and a small amount of cocaine.

The defendant argued that the search warrant failed to establish the credibili ty of the confidenti al informant or t he reliabil ity of his i nformation. The tri al court denied the motion to suppress:

[T]he court has det ermined that the affidav it in this matter sufficiently sets out inf ormation that a magistrate cou ld rely upon i n finding probabl e cause--namely , that the informant had prev iously g iven informati on resultingin a seizure of marijuana involving the named party in the warrant. A more proper wordingmight have been a purchase of marij uana from that indiv idual. However, the information he ha d given in the past was therefore proven to be true. His veracity was proven and his mea ns of knowle dge was also prove n by hi s own observation. Both prongs of the ... test as set out in State v. Jacumin , 778 S.W.2d 430 were met. In this pro s e appeal, the defendant i s limited to any questi on properly addressed under Rule 37( b)(2)(i) or (iv), Tenn. R. Cr im. P., expl icitly reservi ng "wit h the consent of the court the r ight to appeal a certified q uestion of law that is dis positive of the case." 24 Obviously, an affidavit is an indispensable p rerequisite to the issuance of any search w

arrant. Tenn. C ode Ann. § 40-6-103 ; State ex rel . Blackburn v . Fox , 200 Tenn. 227, 230, 292 S.W.2d 21, 23 (1956). It must establ ish probable cause. Tenn. Code Ann. § 40- 6-104; Tenn. R. C rim. P. 41(c). Probable cause has been generally

defined as a reasona ble ground for suspicion, s upported by c ircumstances indicative of an illegal act. See Lea v. State , 181 Tenn. 378, 380-81, 181 S.W.2d 351, 352 (1944).

Also, fundamental to t he issuance of a sea rch war rant is the requirement that the issui ng magistr ate make an independent determination that probable cause ex ists. See State v. M oon , 841 S.W.2d 336, 337 (Tenn. Crim. App

. 1992). Because the ma gistrate must make an indepe ndent determinatio n, it is imperativethat the affidavit contain more than conclusory allegatio ns. "’Reci tal of some of the und erlying circumstances in the affidavit is essential if the magistrate is to perform his deta ched function and not s erve merel y as a rubb er stamp for the police.’" State v. M oon , 841 S. W .2d at 3 38 (quoti ng United States v. Ventresca , 380 U.S. 102, 108-09 (1965)).

The defendant primaril y argues that the affidavit

fails to establ ish the informant's reliability. The general rule is that if the information in the affidavit is supp lied by a co nfi den tial info rman t, th e ade quac y of t he af fid avit is mea sure d by a two-prong ed test:

(1) whe ther the affidavi t contains the b asis of the informant's knowledge (the "ba sis of knowledge prong"); and (2) whe ther the affidavi t includes a fact ual allegat ion that the informant is c redible or t he information is reliable (the "veracity prong"). State v. Jacumin , 778 S.W.2d 430, 432, 436 (Tenn. 1989)(r elying upon Aguil ar v.5 Texas , 378 U.S. 108 ( 1964) and Spinelli v . United States , 393 U.S. 410 ( 1969)). The basis of know ledge prong of this test is not at issue. Our attention is, therefore, directed to thesecond prong

.

In Aguilar , the United St ates Supreme Cour t held that a sear

ch warr ant was improv idently i ssued by the magistrate b ecause the affidavi t did not contai n any underlyin g circumstances indicat ive of ill egal activ ity or an y facts disc losing the credibili ty of the informant or the reli ability of the information gi ven. 378 U. S. at 114. Although the U nited States Supreme Court no long er employs the Aguilar-Spinelli test, the Tennessee S upreme Court has determined that t he test, "if not appl ied hypertechnically, provide[s] a more appropriate structure f or probable cause inquiri es incident to

the issuance of a s earch war rant ... [and] i s more in keepi ng wit h the specific requirement of Ar ticle I, Sec

tion 7 of the Tennessee C onstitution .. .." State v. Jacumin , 778 S.W.2d at 436.

A conclusory

allegatio n of the informant's reliability is insufficient

to satisfy the v

eracity prong. Spinelli v . United States , 393 U.S. at 41 6. "I t disa llows any eval uation by the magistrate a nd require s that the magi strate accept the affiant's conclu sions not only that the prior informa tion was credible but also that it was rel evant and indi cative of rel iability . By its nature, such an allegation voids the magisteria l function." State v. Stephen Udzinski, Jr. , No. 01C01-921 2-CC-00380, slip op. at 8 (Tenn. Crim. App., at Nashville, Nov. 18, 1993). Thus, the aff idavit must include the spec ific underly ing circumstances w hich establi sh the reliab ility of the confidential informant

.

In State v. M oon , this court found an affidavit to be inadequate w hen the informant, w ho claimed to hav e seen marijuana on the premises to be searched,6 was described only as a "reliable" person who "‘has given information against his penal [interest] and ... has g iven informati on that affiant has check ed and found to be co rre ct.’ " 841 S.W.2d at 339 . Si mil arl y, i n thecons oli date d cas e of Stat e v. Landon Gaw & State v. Ronald W ayne Nail , No. 01C01-941 0-CC-00351, slip op. at 6-7 (Tenn. Crim. App., at Nashville, Oct. 26, 19 95), this court held an aff idavit which merely stated that the "inf ormant has provided accurate an d reliable information in the past to Off icer W infree" failed to establish the veracity of the informa nt. This court observed that there was nothing more than a conclus ory all egation of the informant's veracity: "confidential and reliable i nformant who has fur nished information that has

proven to betruthful ...." Thus , the kind, q uality, an d nature of the information previously given by the informant must be provi ded to the issui ng magistrate s o that there is more than mere reliance upon the affiant's asserti on of relia bilit y.

The failure to establ ish the ver acity of the confidential informant, however , is not neces sarily fatal to the affidavi t. The rulingin Jacumin provides that "independent polic e corroborati on could make up defic iencies in e ither prong " of the Aguilar-Spinelli test. State v. Jacumin , 778 S.W.2d at 436; see Spinelli v . United States , 303 U.S. at 414-15. As a result, we must also consid er whether the police corroborati on alleged i n this affidavit is sufficient to satisfy the v eracity prong of Jacumin

.

This court first addressed the i ssue of how much police corr oboration is needed to suppor

t a determinatio n of reliabili ty of information in Moon . The question was framed as follows: "'Can it fairly be said that the ti p, even w hen certain part s of it have bee n corroborate d by independent sources, i s as trustw

orthy as a tip which would pass Aguilar 's tests w ithout independent corroboration? '" State7 v. Moon , 841 S. W .2d at 3 40 (quoti ng Spinelli v . United States , 393 U.S. at 414- 15). In Moon , the court found the affidavit to be inadequa te due to a conclusory allegation of corroboration, u naccompanied by any underlying facts:

["]Certainly , more than the cor roboration of a few minor elements of the story is necessary, especially if those elements involve non-suspect behavior. It is equally certain, thoug h, that the poli ce need not corr oborate every detail of an informant' s report to establish sufficient evidence of his

veracit y." ... [I ]t is not neces sary that the events obser

ved by t he police suppl y probable cause by themselves or

that they poi nt unequivocally i n the direction of g uilt. It is sufficient that they are ‘unusual and inviti ng explanation,’ thoug h ‘as consistent with innocent as w ith criminal activit y .’ Thus, w hen an untested inform ant says that he has seen horse race bets taken at a steel plant and the n passed throug h the fence to defendant, policeobservati on of packages bei ng passed to the defendant on several o ccasions ‘w as sufficient to esta blish the reliability of the informe r in this instance.’ Similarly, where an informer said narcotics were beingsold in a cer tain record shop and that he had purchased narcotics and seen others there, t his was adequately

corroborated by a half hour surveil lance of the s hop resu ltin g in ‘p erso nal o bser vatio n of known narcotic addi cts enteringthe premises, speaking w ith a clerk, g oing to the rear of the store and then exiti ng wit h no apparent purcha se.’["] State v. M oon , 841 S. W .2d at 3 41 (emp hasis ad ded)(quo ting United States v. Bush , 647 F.2d 357, 363 ( 3rd Cir. 1 981) and 1 Wayne R. LaFave , Search and Seizure § 3.3(f), at 683 (2 d ed. 1978)).

In State v. Marshall , 870 S.W .2d 532 (Tenn. Crim. App . 1993), this court rev iewed a warrantless arrest w here probable cause was bas ed on an anonymous informant' s tip and poli ce corroboration. The defendant arg ued the arrest was illeg al because the officer did not have a basis for deter mining the reliabili ty of the informant. By use of the standard in Moon , we found the presence of probable cause. Although the pol ice officer did not have a basi s for determining the informant's reliability , the corrobor ation was substantial. The police officer s aw cash change hand s and observed the defendant "approachi ng cars, l eaning insi de8 windows, and goingback and forth from hi s shirt and p ants pockets w hile leaning into the cars ." State v. Marshall , 870 S.W.2d at 536.

Here, the affida vit contains something more than a con clusory alle gatio n of polic e cor robo ratio n. Of fice r Harve y had c onf irme d "wit hin t he pa st fi ve days" that the informant had acqui red marijuana w hich had been subj ected to seizure. That the officer had par ticipated in the seizure of the same illeg al drug from the same premises

just prior

to the issuanc e of the warr ant is the ki nd of independent corr

oboration necess ary to est ablish the re liability of the confidential informant. This is

more than a mere al legation of ass ociation w ith criminal s; by comparison, in Spinelli , the defendant was simply r eferred to as an "as sociate of [known] book makers ... and [ known] g amblers." 393 U .S. at 414. The Uni ted States Supreme Court c haracteriz ed that alleg ation as a "bald and unilluminati ng asserti on of suspicion that is entitled to no weig ht in apprais ing the magi strate's dec ision." Id

. In order to meet state const itutional standards, a search warrant’s af fidavit must allege facts w hich are "inv iting of ex planation" by the suspect. State v. M oon , 841 S.W.2d at 341. In our view , the contents of thi s affidavit, w hile less i lluminating than ideal, margi nally sat isfied the ver acity pr ong. See State v. Wright , No. 01C01-951 0- CC-00326 (Tenn. Crim. App., at Nashvil le, Jan. 16, 1997)

.
Accordingl y, the judg ment is affirmed.

__________________________________ Gary R. W ade, Ju dge CONCUR:
(See separate concurring opinion) John H. Peay , Judge9 _______________________________ Thomas T. Woodall, Judge