State of Tennessee v. Donna Marie Chartrand

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 4, 2015

STATE OF TENNESSEE v. DONNA MARIE CHARTRAND

Appeal from the Circuit Court for Gibson County

No. 18959 Clayburn Peeples, Judge

No. W2014-02326-CCA-R9-CD - Filed October 7, 2015

The Defendant, Donna Marie Chartrand, was charged in the Circuit Court for Gibson County

with conspiracy to manufacture methamphetamine, promotion of the manufacture of

methamphetamine, felony possession of drug paraphernalia, and misdemeanor possession of

drug paraphernalia. See T.C.A. §§ 39-17-417(a)(1) (Supp. 2012) (amended 2014)

(manufacture of methamphetamine); 39-12-103 (2014) (conspiracy); 39-17-433(a)(1) (2014)

(promotion of methamphetamine manufacture); 39-17-425(b)(1) (Supp. 2012) (felony

possession of drug paraphernalia); 39-17-425 (Supp. 2012) (misdemeanor possession of drug

paraphernalia). In this interlocutory appeal, the Defendant contends that the trial court erred

in denying her motion to suppress the evidence seized during the search of her home, arguing

that the search warrant was not supported by probable cause. We reverse the order of the trial

court and remand the case for further proceedings in which the evidence obtained pursuant to

the invalid warrant is suppressed.

Tenn. R. App. P. 9; Order of the Circuit Court Reversed; Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.

GLENN and ROGER A. PAGE, JJ. joined.

Tom Crider, District Public Defender; Milly Worley, Assistant Public Defender, for the

appellant, Donna Marie Chartrand.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

Garry Brown, District Attorney General; Mark Hazelwood and Hillary Lawler Parham,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

This case relates to the February 5, 2013 search of the Defendant‟s home pursuant to a

search warrant. Special Agent Paul Thomas of the West Tennessee Violent Crime and Drug

Task Force requested and received a search warrant for the home of Daniel Corley, a

codefendant with whom the Defendant lived. The search uncovered materials related to the

manufacture of methamphetamine, and the Defendant and the codefendant were arrested.

At the first suppression hearing on January 7, 2014, no witnesses were presented, and

the trial court heard arguments from defense counsel and the prosecutor. Defense counsel

argued the search warrant was invalid because it was based, in large part, on a tip received by

police from a “confidential concerned citizen.” Defense counsel also argued that the person

should have been considered a criminal informant relative to trustworthiness because no proof

was presented in the affidavit that the informant was law abiding.

The search warrant and supporting affidavit were received as an exhibit. The affidavit

was completed on February 5, 2013, by Special Agent Paul Thomas. It recited Agent

Thomas‟s experience with police work and drug-related crimes, as well as practices he

associated with the drug trade. The affidavit stated, in relevant part:

a. During the month of January 2013 your affiant noticed the name of Daniel

Corley, w/m, [his date of birth, address, and drivers‟ license number] as being

on the pseudoephedrine purchase logs. A further check of the logs revealed that

CORLEY has a history of purchasing pseudoephedrine dating back to August

2012. Furthermore, through my training and experience in investigating

methamphetamine related cases, the frequency of CORLEY‟s purchase history

and the fact that he makes his purchases at varying stores in Gibson and

Madison Counties, leads your affiant to believe that the pseudoephedrine pills

that CORLEY is purchasing are being used in the manufacture of

methamphetamine. CORLEY‟s most recent purchase was on 1-30-2013 at

Target in Jackson, TN. . . .

...

d. . . . a check with NCIC shows that CORLEY pled guilty to three (3)

methamphetamine offenses in 2000 in the United States Federal Court, Western

District of TN. For this plea, CORLEY received a sentence of sixty (60)

months.

e. Furthermore, a confidential concerned citizen, that wishes to remain silent out

of fear for their safety, has confided in your affiant that they have personal

knowledge that CORLEY has been engaging in the ingestion of illegal

methamphetamine in the past 90 days. This concerned citizen has been known

personally by your affiant for at least 5 years and has always proven to be

truthful in other matters.

-2-

The search warrant was signed and issued by a neutral magistrate on February 5, with

the year not indicated. The magistrate wrote the full date on the supporting affidavit. The

officer‟s return section shows that the search warrant was issued and executed on February 5,

2013, and returned on February 11, 2013. The magistrate signed and dated the judgment

below the officer‟s return section, but did not indicate the year.

The prosecutor noted to the trial court that Mr. Corley‟s name appeared on the

pseudoephedrine purchase log. The trial court found that a “highly suspicious” pattern of

activity existed and that the “totality of the circumstances listed in the warrant do establish

probable cause. I don‟t think the concerned citizen by him or herself would have been

sufficient, but . . . I think you‟ve got probable cause[.]”

Defense counsel amended the motion to suppress, and a second suppression hearing

was held on June 16, 2014. No witnesses were presented, and the trial court heard arguments

from counsel and the prosecutor.

Defense counsel argued that no nexus existed between the items specified in the

warrant relative to manufacturing materials and the place to be searched. Counsel noted that

the informant‟s tip mentioned ingestion of methamphetamine by Mr. Corley but not a location

where the methamphetamine would have been found, and methamphetamine manufacture was

not mentioned.

Defense counsel argued that the credibility of the informant was not established and

that a person who recognized methamphetamine on sight was probably of the “criminal

element.” Counsel relied upon State v. Gerald Robert Stevens, 989 S.W.2d 290 (Tenn. 1999),

in which our supreme court held that informant credibility cannot be established by a

conclusory statement that the anonymous witness is credible. Counsel also relied upon State

v. James Norman Usery, No. 02C01-9805-CC-00154, 1999 WL 569691 (Tenn. Crim. App.

Aug. 4, 1999), in which this court concluded that a confidential citizen tip was not

presumptively reliable. In that case, the affiant checked a box that indicated he “received

information from a reliable citizen informant.” Id. at *1. The affiant stated that a “citizen

informant has been in the residence in the past 72 hours and has directly witnessed white

powder substance, green plant material, paraphernalia, weapons, and contraband associated

with the use of controlled substances. This citizen informant is familiar with controlled

substances.” Id. The court concluded that because the affidavit did not explain how or why

the citizen informant was “familiar” with illegal drugs, the veracity of the informant was not

established and the affidavit was insufficient to support a search warrant. Id. at *3.

In the present case, defense counsel observed that although the codefendant‟s name was

on the pseudoephedrine purchase log, the affidavit did not state how frequently the

codefendant purchased pseudoephedrine, that the codefendant was never denied a purchase,

and that buying pseudoephedrine in two counties was not unlawful. Regarding the omission

-3-

of the year in the search warrant, counsel argued that because the search warrant was not

otherwise supported by probable cause, the good faith exception to the exclusionary rule did

not apply and that the error provided an additional basis for concluding the warrant was

invalid.

The prosecutor contended that based upon the totality of the circumstances, the warrant

was supported by probable cause. Regarding the credibility of the informant, the prosecutor

said that the informant was analogous to an “anonymous tipster.” The prosecutor conceded

that anonymous tips and ninety-day-old tips must be corroborated by additional evidence to be

deemed reliable. The prosecutor argued that the corroborating evidence in this case was the

codefendant‟s thirteen-year-old federal methamphetamine convictions. The prosecutor told

the court he thought that the affidavit specified the convictions were “manufacturing

conviction[s].”

In addition, the prosecutor argued that the affidavit provided the requisite nexus

between the place to be searched and the items to be seized because the affidavit included a

statement that a person who manufactured methamphetamine usually did so in the person‟s

home. The prosecutor said the codefendant‟s pseudoephedrine purchases, the information

from the tip, and the prior convictions were sufficient evidence to conclude that the

codefendant was manufacturing methamphetamine.

The prosecutor argued that the issuing magistrate‟s failure to include the year on the

search warrant fell within the good faith exception to the exclusionary rule. See T.C.A. § 40-

6-108 (2012) (stating that otherwise admissible evidence seized as a result of executing a

search warrant will not be suppressed because of a good faith “mistake or technical violation”

by the issuing magistrate, including clerical errors). The prosecutor conceded that the

affidavit was “inartfully drawn.”

The trial court concluded in its written order that the missing year on the search warrant

was a “good faith violation” and that the completed portions of the warrant resolved any

confusion as to the date of issuance. The court also concluded that the totality of the

information in the affidavit established probable cause and found, in relevant part, the

following:

Agent Thomas said . . . he had been a narcotics officer for the past 11

years . . . and that during the previous month, he . . . had seen the name of

codefendant Corley on “pseudoephedrine logs” and that . . . Corley “had a

history of purchasing pseudoephedrine dating back to August 2012,” and that

such purchases were made at “varying stores in Gibson and Madison Counties,”

the most recent purchase being on January 30, 2013[.] Agent Thomas further

stated that . . . he believed that the frequency of Corley‟s purchases indicated

that he was using them to manufacture methamphetamine.

-4-

Agent Thomas also disclosed that Corley had been convicted on three

previous methamphetamine offenses in the year, 2000.

Agent Thomas also related . . . that evidence of methamphetamine

manufacturing remains at the locus of such manufacturing for “months, even

years” after such manufacturing has taken place.

Finally, Agent Thomas claimed . . . to have received information from a

“concerned citizen” that Thomas said he has known for more than five years

and who . . . Thomas[ ] has always known to be truthful “in other matters.”

This “concerned citizen,” . . . told Thomas that he/she had “personal

knowledge” that Corley had been ingesting methamphetamine during the

previous 90 days prior to Thomas‟s request for a warrant.

The trial court denied the motion to suppress, and the Defendant requested an appeal

pursuant to Tennessee Rule of Appellate Procedure 9. The trial court concluded, in relevant

part, that the issue was appealable, that the issue was dispositive of the case, and that the

Defendant would suffer irreparable injury if the appeal were not permitted. See T.R.A.P. 9.

The Defendant then filed an application with this court for permission to appeal the decision,

which was granted. See T.R.A.P. 9(b).

In Tennessee, a search warrant must be issued on a finding of probable cause and

supported by an affidavit that “sets forth facts tending to establish” probable cause. T.C.A.

§§ 40-6-103, -104; see State v. Williams, 193 S.W.3d 502, 506 (Tenn. 2006). “Probable cause

generally requires reasonable grounds for suspicion, supported by circumstances indicative of

an illegal act.” Williams, 193 S.W.3d at 506 (citing State v. Stevens, 989 S.W.2d 290, 293

(Tenn. 1999)). The issuing magistrate should use common sense when determining whether

the affidavit supports a finding of probable cause. State v. Carter, 160 S.W.3d 526, 533

(Tenn. 2005). We review an issuing magistrate‟s probable cause determination with great

deference. State v. Melson, 638 S.W.2d 342, 357 (Tenn. 1982) (citing United States v. Melvin,

596 F.2d 492, 498 (1st Cir. 1979)).

Our standard of review in determining whether a search warrant is based upon probable

cause 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).

“In reviewing the existence of probable cause for issuance of a warrant, we may consider only

the affidavit and may not consider any other evidence known by the affiant or provided to or

possessed by the issuing magistrate.” Carter, 160 S.W.3d at 533. A supporting affidavit must

establish a nexus between the criminal activity, the place to be searched, and the things to be

seized. State v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009) (citing State v. Reid, 91 S.W.3d

247, 273 (Tenn. 2002)). “Courts also should consider the nature of the property sought, the

-5-

normal inferences as to where a criminal would hide the evidence, and the perpetrator‟s

opportunity to dispose of incriminating evidence.” Reid, 91 S.W.3d at 275.

When assessing the reliability of information provided by an informant, our courts

distinguish between “citizens,” or “bystanders,” and “criminal informants,” or people of the

“criminal milieu.” Williams, 193 S.W.3d at 507. Citizens provide information to the police

out of civic duty or concern for their own safety and are presumed credible. State v. Smith,

867 S.W.2d 343, 347 (Tenn. Crim. App. 1993). A citizen informant‟s information is

presumed reliable if (1) the person is known to the police, (2) the person is not part of the

criminal milieu, and (3) the person‟s motivation is to aid the police without any expectation of

payment. State v. Bishop, 431 S.W.3d 22, 38 (Tenn. 2014). Disclosure of a citizen

informant‟s name is not required, but “the source and the information must be judged from all

of the circumstances and from the entirety of the affidavit.” Melson, 638 S.W.2d at 356.

Criminal informants are not presumed credible. Smith, 867 S.W.2d at 347. When an

affidavit contains information from an informant who is not presumed credible, Tennessee

courts determine credibility using the test developed by the Supreme Court in Aguilar v. Texas

and Spinelli v. United States. See State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989)

(adopting two-pronged Aguilar-Spinelli test); see also Aguilar v. Texas, 378 U.S. 108 (1964);

Spinelli v. United States, 393 U.S. 410 (1969).

The Aguilar-Spinelli test requires that the affidavit include evidence of (1) the

informant‟s basis of knowledge and (2) of the credibility of the informant or of the reliability

of the informant‟s information. Bishop, 431 S.W.3d at 38 (Tenn. 2014); see Stevens, 989

S.W.2d 290. “Probable cause may not be found until both prongs are independently

considered and satisfied.” Stevens, 989 S.W.2d at 294 (citing State v. Ballard, 836 S.W.2d

560, 562 (Tenn. 1992)). Our supreme court has cautioned against a “hypertechnical”

application of the Aguilar-Spinelli test. Jacumin, 778 S.W.2d at 436; see Bishop, 431 S.W.3d

at 38.

In regard to assessing the reliability of information and the credibility of the informant,

our supreme court concluded in State v. Stevens that although a search warrant affidavit stated

that a “concerned citizen source” acting on “civic duty” without requesting payment provided

information about a methamphetamine cook site, the informant could not be presumed

credible based on the circumstances of the informant‟s knowledge. Stevens, 989 S.W.2d at

294. The informant detailed the cooking process he observed and provided a sample of the

methamphetamine to police. Id. at 292. The court held that absent an explanation of why the

informant was at a methamphetamine cook site, recognized methamphetamine, and was able

to leave with the finished product, he could not be presumed credible. Id. at 294.

However, if an informant‟s tip fails either prong of the Aguilar-Spinelli test, the

affidavit may establish probable cause through independent police corroboration. Jacumin,

-6-

778 S.W.2d at 436 (citing Commonwealth v. Upton, 476 N.E.2d 548, 557 (Mass. 1985)).

“The credibility of informants‟ information may also be buttressed by independent

corroboration of its details. However, it is not necessary to corroborate every detail of the

informant‟s information.” Bishop, 431 S.W.3d at 38. Corroboration may involve non-

criminal activity, but it must be “of more than a few minor elements of the informant‟s

information.” State v. Smotherman, 201 S.W.3d 657, 664 (Tenn. 2006) (citing State v. Moon,

841 S.W.2d 336, 342 (Tenn. Crim. App. 1992)). “Corroboration of „only innocent aspects of

the story‟ may suffice.” Bishop, 431 S.W.3d at 38 (quoting Melson, 638 S.W.2d at 355).

A trial court‟s findings of fact 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 and legitimate inferences that may be drawn from that evidence.” State v. Keith,

978 S.W.2d 861, 864 (Tenn. 1998); see State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The

trial court‟s application of the law to its factual findings is a question of law and is reviewed

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

The informant in the present case was described as a “confidential concerned citizen”

with “personal knowledge” that the codefendant had ingested methamphetamine in the past

ninety days. The affidavit does not explain the basis for the informant‟s knowledge, such as

where the ingestion occurred, whether the informant personally saw the codefendant ingest the

methamphetamine, why the informant recognized methamphetamine, and why the informant

was present in a place where people were ingesting illegal drugs. See Stevens, 989 S.W.2d at

294. Agent Thomas‟s statements that he had known the informant for five years and that the

informant was always “truthful in other matters” was conclusory and, standing alone, was

insufficient to establish the informant‟s credibility. See Moon, 841 S.W.2d at 338. In light of

the limited information provided as to the informant‟s source of knowledge, we conclude that

the informant could not have been presumed credible and that the tip was not reliable in the

absence of corroborating evidence.

Regarding the remaining evidence contained in the affidavit, we cannot conclude that

either piece of information produced by the police corroborated the informant‟s tip to the

extent that it corroborated the information contained in the tip and established probable cause.

The record reflects that the police performed a background check and examined the

pseudoephedrine purchase logs before seeking a warrant. The record does not reflect the

nature of the methamphetamine offenses for which the codefendant was convicted in federal

court thirteen years previously, and, in any event, these convictions were too remote in time to

corroborate the tip. Similarly, the codefendant‟s name on the pseudoephedrine purchase log

does not corroborate the informant‟s tip because the informant‟s tip did not involve

-7-

methamphetamine manufacture, only ingestion. The affidavit does not reflect the frequency

and quantity of pseudoephedrine purchases by the Defendant. We agree with the Defendant

that the locations of the purchases carry less weight than the frequency of the purchases,

which information was not provided in the affidavit. Purchasing pseudoephedrine while

having thirteen-year-old, drug-related convictions might raise suspicion to warrant further

investigation, but we conclude that this information does not sufficiently corroborate the tip to

establish probable cause for issuance of the search warrant.

Finally, the affidavit fails to establish a nexus between the evidence sought—items

used to manufacture methamphetamine—and the codefendant‟s home. The prosecutor told

the trial court that the affidavit contained an assertion that “manufacture[] is typically done at

the home,” and later said, “[H]e lists in the affidavit, that typically manufacturers of

methamphetamine do it in their home.” However, the affidavit contains no such statements.

The prosecutor also told the court that he thought the codefendant‟s federal convictions were

“manufacturing conviction[s],” but the affidavit states that the codefendant had three

“methamphetamine convictions” in federal court. Although these facts, if true, would support

finding a nexus between the evidence sought and items to be seized, the court did not

reference them in its findings of fact. Aguilar, 378 U.S. at 109, n. 1 (stating that a court

reviewing the probable cause determination of a magistrate is limited to the information

contained in the affidavit). Because the affidavit fails to establish the nature of the

codefendant‟s prior criminal record or that methamphetamine manufacture commonly occurs

in the home, an insufficient nexus exists between the codefendant‟s home and the evidence

sought.

Because the “corroborating” evidence was insufficient to render the informant‟s tip

reliable and the affidavit failed to establish a nexus between the codefendant‟s home and the

evidence sought, we conclude that the supporting affidavit failed to establish probable cause to

issue the search warrant.

As the search warrant was invalid due to insufficient evidence in the supporting

affidavit, we do not reach the issue of whether the issuing magistrate‟s omission of the year on

the search warrant affected its validity.

In consideration of the foregoing and the record as a whole, we reverse the order of the

trial court and remand the case for further proceedings in which the evidence obtained

pursuant to the invalid warrant shall be suppressed.

____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

-8-