State of Tennessee v. Billy Dewayne Walker

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 7, 2005

STATE OF TENNESSEE v. BILLY DEWAYNE WALKER

Appeal from the Circuit Court for McNairy County

No. 1740 Jon Kerry Blackwood, Judge

No. W2005-00216-CCA-R3-CD - Filed July 21, 2005

The state appeals the McNairy County Circuit Court’s order suppressing drug-related evidence

seized from the home of the defendant, Billy Dewayne Walker, pursuant to a search warrant. The

state contends that the trial court erred in finding that the information contained in the affidavit

accompanying the search warrant was insufficient to establish probable cause for the search. We

agree and reverse the trial court’s ruling.

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

Case Remanded

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS

T. WOODALL, JJ., joined.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; and

Elizabeth T. Rice, District Attorney General, for the appellant, State of Tennessee.

James N. Adams, Jr., Selmer, Tennessee, for the appellee, Billy Dewayne Walker.

OPINION

At the suppression hearing, McNairy County Sheriff’s Department Deputy Allen Strickland

testified that he assisted in executing the search warrant of the defendant’s residence on August 16,

2003. The record reflects that the search warrant was issued based upon Deputy Strickland’s sworn

affidavit, which stated:

On 8-15-03 I received a call from Agent Jeff Palmer, Mississippi

Bureau of Narcotics, who stated that on 8-15-03 an under cover

police officer rode with a confidential informant to 8025 Highway 45

South in McNairy County. The under cover officer and the

confidential informant entered 8025 Highway 45 south and purchased

crack cocaine from a black male who was later identified as Billy

Walker. The crack cocaine was field tested and tested positive for

cocaine.

The defendant’s motion requested that the trial court suppress as evidence 4.8 grams of crack

cocaine, approximately one ounce of marijuana, ten Adipex and twelve unidentified red pills,

$833.00 in cash, two cellular telephones, and one scanner, in addition to all other evidence seized

and any statements made as a result of the search. The trial court granted the defendant’s motion and

stated:

The reason is that there are no—All of the statements made in

the affidavit are all conclusions, relayed to you from another officer.

The officer had—You had no factual basis to tell the magistrate about

anything that happened, other than conclusions that were relayed to

you from another officer. It has to be some fact that the affiant is

aware of, himself, that would lead the issuing magistrate to believe

that there was probable cause.

In its order, the trial court noted the affidavit in support of the search warrant was deficient

because it was predicated upon information furnished to the affiant by an officer from the

Mississippi Bureau of Narcotics who did not receive his information firsthand but through hearsay

statements from an unidentified undercover officer and confidential informant. The trial court

observed that the affidavit failed to state (1) the efforts of the affiant or other officers to corroborate

the information, (2) the reasons the affiant believed the information furnished by the undercover

officer and informant were reliable, or (3) why the affiant believed the informants were credible.

The state contends that the trial court erred in finding the affidavit was insufficient to

establish probable cause for the search. It argues that the affiant is not required to have personal

knowledge of the existence of the grounds calling for the search warrant. The defendant contends

that the trial court did not err by granting his motion to suppress. He argues that the search warrant

was invalid because the affidavit contained hearsay and failed to mention that the officers were

engaged in a common investigation, the undercover officer was unidentified and not a fellow officer

of the affiant, and the affiant did not state that he knew Agent Palmer or attempt to corroborate the

information he received.

ANALYSIS

A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the

evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v.

Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the “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.” Odom, 928 S.W.2d at 23. The prevailing

party is entitled to the strongest legitimate view of the evidence and all reasonable inferences drawn

from that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The application of the law

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to the facts as determined by the trial court is a question of law which is reviewed de novo on appeal.

State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

In Tennessee, a finding of probable cause supporting issuance of a search warrant must be

based upon evidence included in a written and sworn affidavit, which sets forth sufficient facts upon

which a neutral and detached magistrate can find probable cause for issuing the warrant. T.C.A. §§

40-6-103, -104; Tenn. R. Crim. P. 41(c); State v. Jacumin, 778 S.W.2d 430, 432 (Tenn. 1989); State

v. Bryan, 769 S.W.2d 208, 210 (Tenn. 1989). The need for the magistrate’s independent judgment

means that the affidavit must contain more than merely conclusory allegations by the affiant.

“Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to

perform his detached function and not serve merely as a rubber stamp for the police.” United States

v. Ventresca, 380 U.S. 102, 108-09, 85 S. Ct. 741, 746 (1965).

In determining the validity of a search warrant, the reviewing court may consider only the

information brought to the magistrate’s attention. Jacumin, 778 S.W.2d at 432. The affidavit may

be based on hearsay information and need not reflect the direct personal observations of the affiant.

Id.; State v. Melson, 638 S.W.2d 342, 354 (Tenn. 1982). When relying on information from an

informant, the affiant must be able to demonstrate that the informant has a basis of knowledge and

that he is credible or the information is reliable. See Jacumin, 778 S.W.2d at 436 (adopting two-

prong test of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964), and Spinelli v. United States,

393 U.S. 410, 89 S. Ct. 584 (1969)); State v. Lewis, 36 S.W.3d 88, 98 (Tenn. Crim. App. 2000). As

a practical matter, when the affiant is an investigating officer, his or her reliability may be presumed

by the magistrate, as may be the reliability of other investigating officers upon whom the affiant

relies. See State v. Moon, 841 S.W.2d 336, 338 n.1 (Tenn. Crim. App. 1992); State v. Brown, 638

S.W.2d 436, 438 (Tenn. Crim. App. 1982). Thus, no special showing of reliability is necessary when

the information comes from such an officer. Moon, 841 S.W.2d at 338 n.1.

In Jacumin, the supreme court warned against applying the two-pronged test

hypertechnically. 778 S.W.2d at 436. It also approved, as it previously had in Bryan, the United

States Supreme Court’s statement in Illinois v. Gates relative to the duties of magistrates and

reviewing courts regarding the determination of probable cause:

The task of the issuing magistrate is simply to make a practical,

commonsense decision whether, given all the circumstances set forth

in the affidavit before him, including the “veracity” and “basis of

knowledge” of persons supplying hearsay information, there is a fair

probability that contraband or evidence of a crime will be found in a

particular place. And the duty of a reviewing court is simply to

ensure that the magistrate had a “substantial basis for . . .

conclud[ing]” that probable cause existed.

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Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332 (1983).

A finding of probable cause made by an issuing magistrate is entitled to great deference.

State v. Yeomans, 10 S.W.3d 293, 296 (Tenn. Crim. App. 1999) (citing Melson, 638 S.W.2d at 357).

Therefore, the standard to be employed in reviewing the issuance of a search warrant is “whether,

in light of all the evidence available, the magistrate had a substantial basis for finding probable

cause.” State v. Meeks, 876 S.W.2d 121, 124 (Tenn. Crim. App. 1993).

First, we conclude the trial court was incorrect when it stated that the affidavit may not be

based on hearsay information and should reflect to some extent Deputy Strickland’s personal

observations concerning the facts and circumstances supporting the search warrant. See Jacumin,

778 S.W.2d at 432; Melson, 638 S.W.2d at 354. Moreover, as previously noted, when the affiant

is an investigating officer, his reliability and that of the officers upon whom he relies may be

presumed by the magistrate. Moon, 841 S.W.2d at 338 n.1. In his affidavit, Deputy Strickland

stated that he learned from Agent Palmer, who worked for the Mississippi Bureau of Narcotics, that

an undercover officer purchased cocaine from the defendant. We may infer that the undercover

officer reported the information to Agent Palmer, who called Deputy Strickland in Tennessee for

assistance with the drug investigation. Because the affidavit was based entirely on information from

law enforcement personnel, the reliability prong was satisfied. The basis of knowledge is supported

by the fact the undercover officer was in the defendant’s home at 8025 Highway 45 South in

McNairy County and personally purchased a substance from the defendant that field tested positive

for cocaine. Based on the information set forth in the affidavit, we conclude the magistrate had a

substantial basis for finding probable cause to search the defendant’s home.

With respect to the remainder of the defendant’s arguments, it is not required that the

undercover officer be identified in the affidavit or that the undercover officer or Agent Palmer be a

fellow officer of the affiant. As for independent corroboration, we note that it may supplement the

information used to satisfy either prong of the Spinelli/Aguilar test. State v. Ballard, 836 S.W.2d

560 (Tenn. 1992); Jacumin, 778 S.W.2d at 436; Moon, 841 S.W.2d at 340. However, it is not

required. If the information supplied by a source is sufficient in and of itself to support a finding of

probable cause, there is no reason to impose an additional duty on the police to supplement the facts.

See State v. Ernest B. Steele, Jr., No. 03C01-9212-CR-00430, Knox County, slip op. at 5 (Tenn.

Crim. App. Aug. 25, 1993).

Based on the foregoing and the record as a whole, we reverse the trial court’s ruling and

remand this case to the McNairy County Circuit Court for proceedings consistent with this opinion.

___________________________________

JOSEPH M. TIPTON, JUDGE

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