State of Tennessee v. Abby L. Mills

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

January 6, 2009 Session

STATE OF TENNESSEE v. ABBY L. MILLS

Direct Appeal from the Circuit Court for Lauderdale County

No. 8331-A Joseph H. Walker, Judge

No. W2008-00984-CCA-R3-CD - Filed May 11, 2009

The defendant, Abby L. Mills, was indicted by the Lauderdale County Grand Jury of possession of

a Schedule II controlled substance, cocaine, with the intent to deliver; possession of a Schedule III

controlled substance, Hydrocodone, with the intent to deliver; and possession of a Schedule VI

controlled substance, marijuana, with the intent to deliver over .5 ounces. After a hearing, the trial

court granted defendant’s motion to suppress evidence of items found in the defendant’s home. On

appeal, the state asserts that the trial court erred in suppressing the evidence obtained as a result of

a valid search warrant. Upon review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J.C. MCLIN , J., delivered the opinion of the court, in which ALAN E. GLENN and CAMILLE R.

MCMULLEN , JJ., joined.

Rebecca Mills, Ripley, Tennessee, for the appellee, Abby L. Mills.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; D.

Michael Dunavant, District Attorney General; and Julie Pillow, Assistant District Attorney General,

for the appellant, State of Tennessee.

OPINION

Background

The defendant was indicted on three counts of possession of a controlled substance with the

intent to deliver. Prior to a trial, the defendant filed a motion to suppress the evidence obtained

pursuant to a search warrant of the residence the defendant shared with Mr. Christopher Younger.

The following testimony was presented at a hearing on the defendant’s motion. Garrison Taylor

with the Covington Police Department testified that his unit received a tip from a confidential

informant that Mr. Younger had delivered large amounts of marijuana to the informant’s residence.

Based on the tip, his unit began an investigation of Mr. Younger. In a “buy/bust” operation, Mr.

Younger was contacted by the informant and requested to bring one pound of marijuana to the home

of the informant on Mill Road. The telephone call was monitored by the police and Mr. Younger’s

voice was identified by the informant. Approximately twenty minutes after the telephone call, Mr.

Younger arrived at the informant’s home in a truck accompanied by three other individuals. Mr.

Younger entered the informant’s residence with approximately one pound of marijuana and was

arrested. The three occupants in Mr. Younger’s truck were taken into custody and interviewed. All

three passengers stated that they had come directly from the residence where Mr. Younger lived to

the informant’s residence without making any additional stops. Officer Taylor sent “two agents with

the Drug Task Force that were actually Ripley officers to [Mr. Younger’s] residence to secure the

residence so that [he] was able to acquire or attempt to acquire a search warrant for that residence.”

An affidavit claiming that there was probable cause to search the residence was prepared and signed

by Officer Taylor. The affidavit was made an exhibit at the hearing and states:

Personally appeared before me Agent Garrison Taylor of the 25th Judicial Drug Task

Force who makes oath that He has probable cause for believing and does believe that

Christopher J. Younger is in possession of the following described property, to-wit:

Marijuana, a schedule VI controlled substance and/or any other drug related

paraphernalia, controlled substances, records, monies, and any gang related

paraphernalia contrary to the laws of the State of Tennessee, upon the following

described premises to wit: 664 Brogdon Rd. Henning TN, a single story wood framed

residence with tan siding, maroon shu[tt]ers and a black roof. The address is located

on the mailbox situated in front of the residence. Search to include all outbuildings

and vehicles related to said premises; and the reason for such belief and the probable

cause for such belief are that agents received information from a confidential

informant that Christopher Younger was delivering large amounts of Marijuana to

his residence at 130 Mill Rd. in the City of Covington, TN. Acting on this

information agents began an investigation. Agents went to the residence of 130 Mill

Rd. Covington, TN. and spoke with the confidential informant. Agents then wired

said confidential informant with an audio/video recording device. Said informant

then contacted Christopher Younger at his residence in Henning TN. by calling

phone number . . . . Said informant then spoke to a male, who said informant knew

as Christopher Younger. Said informant and Christopher Younger spoke

momentarily and then said informant requested that Christopher Younger deliver him

one pound of Marijuana. Christopher Younger stated that he was about to leave and

go to Brighton TN. and that he would bring the package to said informants residence.

Said confidential informant then agreed and ended the phone conversation with

Christopher Younger. Agents then left said residence and took position within a mile

of said residence where agents monitored the confidential informant via listening

device. Approximately twenty minutes of making the phone call, Agents monitored

the confidential informant state that he, Christopher Younger, is here. Agents then

surrounded said residence where Christopher Younger was discovered inside the

residence and in possession of a clear plastic bag containing a green plant-like

substance which appeared to be Marijuana. Agents also discovered a White

Chevrolet truck in the driveway of said residence, which was registered to a

Christopher Younger. Agents discovered several passengers inside the vehicle

whose names are as follows: Cliff Proctor, age 18, Christopher Brown, age 22 and

Bradley Younger, age 23. Agents spoke with the passengers of the vehicle who

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stated that they met at Christopher Younger’s residence in Henning, TN. to go to

Brighton arms in Brighton, TN, in order to pick up some items to target shoot.

Passengers stated that they left Christopher Younger’s residence with Christopher

Younger, in his vehicle and drove directly to 130 Mill Rd. Covington, TN.

Passengers state that Christopher Younger exited the vehicle at said residence and

went inside said residence. Passengers advised this is when the police arrived to said

residence and took said passengers into custody. Agents also utilized a K9 narcotics

sniffing dog, which was handled by Agent Joey Rhea. Agent Rhea stated that said

K9 alerted on two separate areas of Christopher Younger’s vehicle. Agents then

searched said vehicle. Upon searching said vehicle Agents discovered a handgun in

the glove compartment of said vehicle. Agents discovered via Christopher Younger

that he had said handgun by way of his grandfather. Agents believe that Christopher

Younger delivered the approximate one pound of Marijuana to the said residence and

that the said Marijuana was brought from the residence of Christopher Younger at

664 Brogdon Rd. in Henning TN. Agents believe that additional Marijuana and/or

illegal narcotics still remain at said residence of 664 Brogdon Rd. Henning, TN. This

did occur within the past 72 hours.

Affiant therefore asks that a warrant be issued to search the premises herein described

either by day or night, where he believes said Marijuana, a schedule VI controlled

substance and/or any other drug related paraphernalia, controlled substances, records

and monies are now possessed, contrary to the Laws of the State of Tennessee.

On cross-examination, Officer Taylor testified that because Mr. Younger went directly from his

residence to the residence of the informant and arrived with approximately one pound of marijuana,

he believed that there were illegal drugs at Mr. Younger’s residence. Officer Taylor stated that

police officers were sent to secure the residence while he obtained a search warrant to avoid having

Mr. Younger, or one of the occupants of his vehicle, contact the defendant, Abby Mills, and advise

her to destroy any illegal drugs at the residence.

Officer John Thompson with the Lauderdale County Sheriff’s Office assigned to the drug

task force testified that after Mr. Younger’s arrest, he interviewed the occupants of Mr. Younger’s

vehicle. All of the occupants gave statements indicating that they left Mr. Younger’s residence and

traveled directly to the informant’s residence on Mill Road. Officer Thompson agreed that all three

of the occupants could have alerted individuals at Mr. Younger’s residence that the police were

obtaining a search warrant. On cross-examination, Officer Thompson recalled that one of the

occupants tried to use his cell phone while being detained. Officer Thompson stated that a bag

similar to the bag Mr. Younger carried into the informant’s house was found inside Mr. Younger’s

truck, however, stated that no evidence or statement connected the bags with Mr. Younger’s

residence.

Greg Land, drug investigator with the Ripley Police Department, testified that after

approximately twenty minutes at the Mill Road residence in Covington, he and Officer Rhea proceed

to Mr. Younger’s residence on Brogdon Road in Henning. They parked in the driveway and

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knocked on the front and back doors, announcing who they were. Officer Land stated the windows

were covered with blinds and he assumed that no one was home. They remained in the front yard

of the residence and waited for officers to arrive with a search warrant.

Officer Land stated that approximately one hour after they arrived at the residence on

Brogdon Road, Officer Rhea spotted the defendant in the house. Officer Rhea approached the front

door, announced who he was, and “told [the defendant] to open the door.” Officer Land testified that

he then went to the front porch and told the defendant that Mr. Younger had been arrested. Both

police officers entered the house. Officer Land could not recall if the defendant nodded, indicating

that he and Officer Rhea could enter the house, or if the defendant actually stated “come in.” Officer

Land stated that he asked for permission to search the house, and when the defendant declined the

request, Officer Land “told her to have a seat until [the police] arrived with a warrant.” Officer Land

denied that a search was performed before the warrant arrived and stated that while they waited, the

defendant was allowed to go to the bathroom. However, the defendant was accompanied to the

bathroom by Officer Rhea because they did not want the defendant to get out of their sight and

obtain a weapon or destroy evidence. Officer Land stated that as they waited for the warrant, the

defendant’s phone rang “[m]ore than a dozen” times, however, the defendant was not allowed to

answer the calls. On cross-examination, Officer Land agreed that he and Officer Rhea were armed,

that they did not inform the defendant that she was free to leave the residence, and that the defendant

was pregnant and appeared upset.

Officer Rhea with the Ripley Police Department testified that he and Officer Land were

outside the defendant’s residence for one hour before the defendant opened the door. Officer Rhea

stated that he called out to the defendant, stating, “Abby, it’s the police department. Open the door.”

Officer Rhea further testified that when the defendant opened the door, Officer Land explained the

situation and the defendant asked the officers to come in. Officer Rhea agreed that the defendant

was alone in the house, pregnant and obviously frightened. He stated that he saw nothing in plain

view indicating illegal activity. On cross-examination, Officer Rhea was asked if Officer Land was

correct when he said they “entered the residence and then the conversation took place between [the

police] and [the defendant].” Officer Rhea testified that Officer Land’s testimony was not accurate

and instead claimed that the defendant opened the door and the police officers told her why they

were there, then they stepped inside the house. Officer Rhea agreed that it appeared that the

defendant knew that they were outside for some time, but did not answer the door. Officer Rhea

agreed that he and Officer Land were only able to enter the residence after he told the defendant to

open the door.

After taking the matter under advisement, the trial court issued a written order granting the

defendant’s motion to suppress the evidence obtained by police officers in the defendant’s home

pursuant to the search warrant issued on August 30, 2007. The state has appealed.

Analysis

I. Warrantless entry

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On appeal, the state argues that the trial court’s suppression of the evidence found in the

defendant’s home was based on erroneous findings by the court that the officers entered the

defendant’s residence without consent and upon an “unsubstantiated claim of exigent

circumstances.” In the alternative, the state asserts that even if the warrantless entry and the

temporary restraint were unlawful, the evidence was “seized as a result of legally sufficient and

properly executed search warrant.” The state argues no evidence was identified or seized until the

arrival of the search warrant.

When reviewing a trial court’s decision on a motion to suppress, the court conducts a de novo

review of the trial court’s conclusions of law and application of law to facts. See State v. Walton,

41 S.W.3d 75, 81 (Tenn. 2001). However, the trial court’s findings of fact are presumed correct

unless the evidence contained in the record preponderates against them. See State v. Daniel, 12

S.W.3d 420, 423 (Tenn. 2000). “Questions of credibility of the witnesses, the weight and value of

the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the

trier of fact.” State v. Lawrence, 154 S.W.3d 71, 75 (Tenn. 2005) (quoting State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996)). Moreover, the prevailing party is entitled to the strongest legitimate

view of the evidence and all reasonable and legitimate inferences that may be drawn from that

evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001).

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.

A similar guarantee is provided in Article I, section 7 of the Tennessee Constitution:

That the people shall be secure in their persons, houses, papers and possessions, from

unreasonable searches and seizures; and that general warrants, whereby an officer

may be commanded to search suspected places, without evidence of the fact

committed, or to seize any person or persons not named, whose offences are not

particularly described and supported by evidence, are dangerous to liberty.

The essence of these constitutional protections is to “safeguard the privacy and security of

individuals against arbitrary invasions of government officials.” State v. Downey, 945 S.W.2d 102,

106 (Tenn. 1997) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). As a result,

warrantless searches and seizures inside a residence are presumed to be unreasonable. Payton v. New

York, 445 U.S. 573, 586 (1980). “Even though a felony has been committed and officers have

probable cause to believe that they will locate incriminating evidence inside a residence, a

warrantless entry to search for contraband or weapons is unconstitutional absent exigent

circumstances.” State v. Carter, 160 S.W.3d 526, 531 (Tenn. 2005) (citing Payton, 445 U.S. at

587-588).

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In the instant case, the trial court found “that the intrusion to secure the residence of [the

defendant] was illegal[,]” and further that “[t]he seizure of the [the defendant] was not permissible

under the circumstances in this case.” The record before us indicates that Officer Taylor dispatched

Officers Land and Rhea to secure the residence in Lauderdale County while he attempted to secure

a search warrant for the residence. Officer Taylor dispatched the officers based on his fear that any

illegal drugs located at the residence would be destroyed. Officers Land and Rhea arrived at the

residence, knocked on the front and back doors, walked around the residence, and attempted to look

into the windows of the residence. The police officers then waited outside the residence for

approximately one hour. Thereafter, Officer Rhea spotted the defendant in the residence and called

out to her by name and told her to open the door. Officer Rhea admitted that it appeared that the

defendant knew the police were outside of her house, but did not open the door until he commanded

her to do so. Officer Land testified that they went into the house. Officer Land asked for permission

to search the house, but the defendant denied permission. The defendant was then told to sit and

wait for the search warrant to arrive. Officers Land and Rhea both stated that the defendant was

pregnant and appeared upset and frightened. Officers testified that they did not inform the defendant

that she was free to leave. Officers both agreed that Officer Rhea followed the defendant to the

bathroom, and that the defendant was not allowed to answer numerous telephone calls made to the

residence.

Viewed in a light most favorable to the defendant and with due deference to the trial court’s

factual findings, the record shows that the officers entered the defendant’s private residence and

remained inside without a warrant and without the defendant’s permission. Furthermore, as found

by the trial court, the record does not support the existence of exigent circumstances justifying the

warrantless entry into the residence. The police officers were outside of the defendant’s residence

for approximately one hour before they entered the home, giving the defendant ample time to receive

calls and destroy evidence if such was her intent. Here, the risk of the destruction of evidence, i.e.,

the alleged exigent circumstance, was created solely by actions of the police officers in going to the

defendant’s residence and entering the residence without a warrant in order to secure the residence

for a later search. Therefore, the warrantless entry of the defendant’s residence and her detention

by officers in this case was not supported by exigent circumstances and was unlawful. See Carter,

160 S.W.3d at 531.

II. Independent source doctrine

Having concluded that the warrantless entry was unlawful, we next examine the effect of the

illegal entry on the admissibility of the evidence subsequently seized from the defendant’s residence.

See Carter, 160 S.W.3d at 532. The exclusionary rule may bar the admission of evidence obtained

from an unconstitutional search or seizure, however, the “rule does not apply to evidence obtained

by means independent of the constitutional violation.” Id. (citing Wong Sun v. United States, 371

U.S. 471, 485-87 (1963). To expound:

Pursuant to the independent source doctrine, an unconstitutional entry does

not compel exclusion of evidence found within a home if that evidence is

subsequently discovered after execution of a valid warrant obtained on the basis of

facts known entirely independent and separate from those discovered as a result of

the illegal entry. Further, even “plain view” evidence observed during the

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warrantless entry will not be excluded so long as (1) the evidence is later discovered

during a search pursuant to a valid warrant, (2) this valid warrant was obtained

without reference to evidence uncovered during the illegal search, and (3) the

government agents would have obtained the warrant even had they not made the

illegal entry.

In order for the subsequent warrant and search to be found genuinely

independent of the prior unconstitutional entry, the . . . information obtained during

the illegal entry may not have been presented to the issuing Magistrate.

State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992) (citations omitted). “The underlying policy of the

independent source doctrine is that ‘while the government should not profit from its illegal activity,

neither should it be placed in a worse position that it would otherwise have occupied.’” Carter, 160

S.W.3d at 532 (citing Murray v. United States, 487 U.S. 533, 542 (1988)).

The record in the instant case reveals that no evidence was identified or seized during the

initial entry and detention. The affidavit supporting the warrant did not refer to the entry or the

detention of the defendant. Additionally, the information in the affidavit was obtained prior to the

initial entry. Accordingly, we conclude that the unlawful entry and detention did not taint the

evidence ultimately seized pursuant to the search warrant. See Carter, 160 S.W.3d at 533.

However, our analysis does not end here. We must next consider whether the affidavit supporting

the issuance of the search warrant under which the evidence was seized established probable cause

to search the defendant’s residence. Id.

III. Probable cause for the issuance of a search warrant

The Fourth Amendment to the United States Constitution requires that search warrants issue

only “upon probable cause, supported by Oath or affirmation.” Article I, Section 7 of the Tennessee

Constitution precludes the issuance of warrants except upon “evidence of the fact committed.”

Probable cause has been defined as “a reasonable ground for suspicion, supported by circumstances

indicative of an illegal act.” State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998) (citing Lea v.

State, 181 S.W.2d 351, 352 (Tenn. 1944)). No warrant should issue except upon probable cause

based upon evidence appearing in a written and sworn affidavit. State v. Jacumin, 778 S.W.2d 430,

436 (Tenn. 1989); see also Tenn. Code Ann. § 40-6-103. “[P]robable cause to support the issuance

of the warrant must appear in the affidavit and judicial review of the existence of probable cause will

not include looking to other evidence provided to or known by the issuing magistrate or possessed

by the affiant.” State v. Moon, 841 S.W.2d 336, 338 (Tenn. Crim. App. 1992) (citing Jacumin, 778

S.W.2d at 432)). Conclusory statements by an affiant alone will not provide probable cause

sufficient to support the validity of a search warrant. See Jacumin, 778 S.W.2d at 437. On appeal,

we must determine whether “the magistrate had a substantial basis for concluding that a search

warrant would uncover evidence of wrongdoing[.]” Id. at 432.

To establish probable cause, an affidavit may rely on hearsay information from a confidential

informant if the affidavit also provides facts sufficient to establish reliability. Henning, 975 S.W.2d

at 294-95. “In determining the reliability of the information contained in an affidavit, a distinction

exits between a ‘citizen-informant’ or a bystander witness and criminal informants or those from a

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‘criminal milieu.’” Carter, 160 S.W.3d at 534 (citation omitted). Information obtained from a

“citizen-informant” known to the affiant is presumed reliable. Id. However, if the affidavit does not

provide any information regarding the status of a confidential informant as an “anonymous caller”

or a “citizen-informant,” there is no presumption of reliability. Id. Instead, the two-prong test for

the reliability of information provided by criminal informants must be applied. Id (citations

omitted). According to the test, when the affiant relies upon hearsay information from a confidential

informant, the affidavit must inform the issuing magistrate of the basis of the knowledge provided

by the informant and either the basis of credibility of the informant or the reliability of the

informant’s information. Id. In order to satisfy the first prong, the knowledge prong, the affiant

must have informed the magistrate of some of the underlying circumstances which led to the

informant’s knowledge. Moon, 841 S.W.2d at 338. To satisfy the second prong, the veracity prong,

the affidavit must have informed the magistrate of some of the underlying circumstances from which

the affiant concluded that the informant was credible or the informant’s information was reliable.

Id.

Independent police corroboration of the informant’s information may make up for

deficiencies in either prong. State v. Powell, 53 S.W.3d 258, 263 (Tenn. Crim. App. 2000). If there

is no indication that the informant had any history of police cooperation, or of providing information

to police which led to prior arrests or convictions,“[s]ome other indicia of the informant’s credibility

and reliability, such as independent police corroboration, [is] required to support the credibility of

the informant and by extension, support an independent finding of probable cause.” State v. Charles

Ricky Pipkin, Jr., No. W2007-01110-CCA-R3-CD, 2008 WL 4117966, at *7 (Tenn. Crim. App., at

Jackson, Sept. 4, 2008). Police corroboration providing for only one element of non-suspect

behavior and offering little support to the credibility of the informant or the reliability of the

informant’s information will not be sufficient to bolster information provided by a confidential

informant. State v. Smotherman, 201 S.W.3d 657, 663 (Tenn. 2006) (holding an affidavit did not

contain sufficient police corroboration to establish the reliability of an informant’s information

regarding the occurrence of illegal drug transactions at the defendant’s residence).

In the instant case, the affidavit supporting the search warrant relies on information from a

confidential informant. Therefore, in making a determination of whether the issuance of the search

warrant was supported by probable cause, there is no presumption of reliability. See Carter, 160

S.W.3d at 534. While the affidavit recounts the informant’s knowledge as to the fact that Mr.

Younger delivered marijuana to the informant’s residence, the affidavit does not reflect that the

informant had actual knowledge regarding illegal activity occurring at the defendant’s residence.

There is nothing in the affidavit to show that the residence had been under police surveillance or that

any surveillance had uncovered suspect activity at the residence. Police corroboration reported in

the affidavit provides only that the passengers in Mr. Younger’s vehicle indicated that Mr. Younger

traveled from the defendant’s residence to the residence of the informant. Evidence of the route

taken by Mr. Younger prior to being arrested provides little, if any, corroboration of the informant’s

knowledge that drugs or contraband were located at the defendant’s residence. See Smotherman, 201

S.W.3d at 663. Consequently, the informant’s information fails to link Mr. Younger’s delivery of

drugs to any drugs suspected to be found at the defendant’s residence. The basis for the affiant’s

belief that illegal drugs or contraband existed in the defendant’s residence amounted to conclusory

statements by the affiant, which were insufficient by themselves to provide probable cause. See

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Jacumin, 778 S.W.2d at 437. Additionally, the affidavit does not provide sufficient corroboration

of the reliability of the informant or the informant’s basis of knowledge concerning the defendant’s

residence. The affidavit contains no statement to support previous verifiable activities by Mr.

Younger involving illegal drugs and does not report police surveillance of the residence. There is

nothing in the affidavit to show verifiable information that the informant had worked with the police

in the past. We conclude that the search warrant was not supported by probable cause. Evidence

or statements obtained as fruits of an illegal search warrant must be suppressed. See Wong Sun, 371

U.S. at 485. Accordingly, the evidence obtained as a result of the search of the defendant’s home

must be suppressed as the fruit of an illegal entry and a subsequent illegal search.

CONCLUSION

Because the affidavit supporting the issuance of the search warrant was not sufficient to

establish probable cause, we affirm the judgment of the trial court.

___________________________________

J.C. McLIN, JUDGE

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