State of Tennessee v. Evelyn C. Bostic ( 2002 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 28, 2001
STATE OF TENNESSEE v. EVELYN C. BOSTIC
Appeal as of Right from the Circuit Court for Rutherford County
No. 48518-A James K. Clayton, Jr., Judge
No. M2000-03011-CCA-R3-CD - Filed March 8, 2002
The appellant, Evelyn C. Bostic, pled guilty in the Rutherford County Circuit Court to one count of
facilitation of possession of more than .5 gram of cocaine with intent to sell. The trial court
sentenced the appellant to six years incarceration in the Tennessee Department of Correction. As
part of the plea agreement, the appellant specifically reserved a certified question of law regarding
the sufficiency of the affidavit underlying the search warrant issued in this case. Upon review of the
record and the parties’ briefs, we reverse the judgment of the trial court and vacate the appellant’s
conviction.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH, JJ., joined.
Kenneth D. Quillen, Nashville, Tennessee, for the appellant, Evelyn C. Bostic.
Paul G. Summers, Attorney General and Reporter; T. E. Williams, III, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and John W. Price, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
On September 3, 1999, officers with the Smyrna Police Department executed a search
warrant on 1 Imperial Boulevard, C-27, located in Smyrna, Tennessee, which is the residence of the
appellant and her boyfriend, Walter L. Holmes. In the closet of the master bedroom, the police
discovered approximately 3.5 ounces of cocaine. The appellant was indicted for possession of more
than .5 gram of cocaine with intent to sell, which indictment was subsequently amended to reflect
a charge of facilitation of possession of more than .5 gram of cocaine with intent to sell.
Prior to trial, the appellant filed a motion to suppress, complaining of several
problems with the search warrant and with the affidavit in support of the search warrant. After a
motion to suppress hearing, the trial court denied the appellant’s motion, stating that “the Court finds
there to be probable cause in the affidavit to support a search warrant.” Following this ruling, the
appellant pled guilty to the charged offense and received a six year sentence.1 As part of her plea
agreement, the appellant properly reserved the following certified question of law: Whether the
search warrant affidavit established probable cause, or more specifically, whether the affidavit
reflected a basis of knowledge for the informant’s assertions and a sufficient nexus between the
evidence sought and the premises to be searched. See Tenn. R. Crim. P. 37(b)(2)(i); State v. Preston,
759 S.W.2d 647, 650 (Tenn. 1988) (describing the procedure for properly reserving a certified
question of law).
II. Analysis
On appeal, "a trial court's findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise." State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
Nevertheless, appellate courts will review the trial court's application of law to the facts purely de
novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn.), cert. denied, __ U.S. __, 122 S. Ct. 341 (2001).
With regard to the issue now before us, our supreme court has explained that
[t]he 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.” Therefore, under both the federal
and state constitutions, no warrant is to be issued except upon
probable cause. 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) (footnote and citations omitted). Moreover,
in this state, “a finding of probable cause supporting issuance of a search warrant must be based
upon evidence included in a written and sworn affidavit.” Id. Specifically, this court has observed
that “[p]robable cause to support the issuance of a 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. Barbara Copeland, No.
03C01-9402-CR-00079, 1996 Tenn. Crim. App. LEXIS 385, at **8-9 (Knoxville, June 28, 1996);
see also State v. Moon, 841 S.W.2d 336, 337-338 (Tenn. Crim. App. 1992). Additionally, “[i]n
order to establish probable cause, an affidavit must set forth facts from which a reasonable
conclusion may be drawn that the contraband will be found in the place to be searched pursuant to
the warrant.” State v. Norris, 47 S.W.3d 457, 470 (Tenn. Crim. App. 2000). Furthermore,
“‘affidavits must be looked at and read in a common sense and practical manner’, and . . . the finding
1
The trial court ordered the appellant to serve her six year sentence on probation.
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of probable cause by the issuing magistrate is entitled to great deference.” State v. Bryan, 769
S.W.2d 208, 211 (Tenn. 1989) (quoting State v. Melson, 638 S.W.2d 342, 357 (Tenn. 1982)).
Accordingly, we must review the affidavit to determine whether there was sufficient evidence
contained therein to support the issuance of the search warrant; namely, whether the affidavit
sufficiently alleges the existence of illegal activity at the appellant’s residence.
Officer Duke’s affidavit contains the statements of a confidential informant, as related
to Detective Jesse Burchwell who in turn related the statements to Officer Duke;2 the details of the
corroborative efforts of police; and statements describing how, in Officer Duke’s experience, a drug
dealer typically conducts business. We will begin by addressing the appellant’s concerns about the
sufficiency of the informant’s tip.
The first paragraph of the affidavit states as follows:
Your affiant received information from Detective Jesse Burchwell on
the Nashville Metro Police Department that a confidential and
reliable informant, hereafter referred to as said CI; stated that Walter
Holmes was selling cocaine and marijuana from 2423 Eden Street,
Apartment C, Nashville[,] Tennessee. Said CI stated that Walter
Holmes stores his drugs and monies in a residence in Smyrna,
Tennessee, Rutherford County. Said CI stated that Walter Holmes
lived in Smyrna with his girlfriend who works at a Wendy’s
Restaurant in Nashville. Within the past 72 hours Detective
Burchwell gave said CI a quantity of Metro Vice funds and directed
said CI to go to 2423 Eden Street, Apartment C in Nashville and
purchase a quantity of cocaine. Detective Burchwell observed Walter
Holmes drive a Nissan Altima with Tennessee license 194-ZXP and
go into 2423 Eden Street, Apartment C. Detective Burchwell then
observed said CI go into 2423 Eden Street, Apartment C and
momentarily return from this address and proceed directly back to
Detective Burchwell where said CI turned over a quantity of cocaine
to Detective Burchwell. Said CI is familiar with said drug from past
experience and exposure. Detective Burchwell knows said CI is
reliable from past criminal drug information received from said CI
that Detective Burchwell has corroborated and from the seizures of
narcotics and monies based on information obtained from said CI.
The affidavit also attests that the police corroborated that Holmes lived in Smyrna with the appellant,
who works at a Wendy’s in Nashville, and that Holmes was seen driving the appellant’s car.
2
This court has observed that it is permissible for an officer to apply for a search warrant based upon the
observations of fellow officers engaged in a com mon investigation. State v. Brown, 638 S.W.2d 436, 438 (Tenn. Crim.
App. 198 2).
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In State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989), our supreme court espoused
the two-pronged Aguilar-Spinelli test “as the standard by which probable cause will be measured
to see if the issuance of a search warrant is proper under Article I, Section 7 of the Tennessee
Constitution.” See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969); Aguilar v. Texas,
378 U.S. 108, 84 S. Ct. 1509 (1964). Specifically, “hearsay information supplied by a confidential
informant can not support a finding of probable cause unless it also contains factual information
concerning the informant’s basis of knowledge and credibility.” Henning, 975 S.W.2d at 294-295
(citing Jacumin, 778 S.W.2d at 432, 436). It is also well established that “independent police
corroboration 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 appellant specifically complains that the confidential informant’s tip contains no
information regarding the informant’s basis of knowledge. In response to the appellant’s brief, the
State does not address the informant’s basis of knowledge but maintains that the information
contained in the affidavit adequately establishes the informant’s credibility. However, the appellant
does not contend that there was insufficient information contained in the affidavit to establish the
informant’s credibility. Notably, from our review of the content of the affidavit, the informant’s
credibility and reliability were adequately established. See State v. Lowe, 949 S.W.2d 300, 305-306
(Tenn. Crim. App. 1996); State v. Michael Allen Price, No. 01C01-9803-CC-00126, 1999 Tenn.
Crim. App. LEXIS 291, at *9 (Nashville, March 23, 1999).
This court has explained that “[u]nder the . . . ‘basis of knowledge’ prong, facts must
be revealed which permit the magistrate to determine whether the informant had a basis for his
information or claim regarding criminal conduct.” Lowe, 949 S.W.2d at 304; see also Moon, 841
S.W.2d at 338. Specifically, “[t]he informant must describe the manner in which he gathered the
information, or the informant must describe the criminal activity with great particularity.” State v.
Steven Woodward, No. 01C01-9503-CR-00066, 1996 Tenn. Crim. App. LEXIS 114, at *6
(Nashville, February 23, 1996). It is clear from our review of the information contained in the
affidavit that there is no information contained therein from which the magistrate issuing the search
warrant could determine how the informant obtained the information regarding the Smyrna
residence.3 See State v. Bowling, 867 S.W.2d 338, 343 (Tenn. Crim. App. 1993). Namely, “the tip
contained neither an explicit statement describing the basis of the informant’s knowledge nor
sufficient detail to suggest reliance upon ‘something more substantial than a casual rumor circulating
3
W e find it imp ortan t to note that, at the m otion to sup press hearing, O fficer D uke testified that both th e
confidential informa nt and D etective Bu rchw ell heard Holmes say that Holmes kept his drugs at his Smyrna residence
where he lived with the appellant. Had this information been in the affidavit, the basis of knowledge prong would have
been am ply satisfied. See State v . Marsha ll, 870 S.W .2d 5 32, 5 39 (Ten n. Crim. A pp. 1 993 ); State v. Jimmy Clyde
Jones, No. 02C 01-970 3-CC-00 120, 199 7 Tenn . Crim. App. L EXIS 1289, at *9 (Jackson , Decem ber 18, 1997 ).
Regrettably, Officer Duke did not explain in th e affidavit how the inform ation was obtained. See Moon, 841 S.W.2d
at 342 (stating that “[r]eg ardless of w hat inform ation was actua lly po ssessed by th e affian t in this case, it [is] incumbent
upon him to inclu de su fficient circum stances in the affidavit to allow the m agistrate to determin e pro bab le cause under
the standard provided by Jacumin ”).
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in the underworld or an accusation based merely on an individual’s general reputation.’” State v.
Jose Roberto Ortiz, No. M1998-00483-CCA-R3-CD, 1999 Tenn. Crim. App. LEXIS 1339, at *31
(Nashville, December 30, 1999) (quoting Spinelli, 393 U.S. at 416, 89 S. Ct. at 589). The affidavit
merely gave a conclusory statement regarding the presence of drugs at the Smyrna residence.
Moreover, the appellant also contends that the affidavit did not “establish[] a
sufficient nexus between the evidence sought and the premises to be searched.” Our supreme court
has expounded that
[a]n affidavit in support of a search warrant must set forth facts from
which a reasonable conclusion might be drawn that the evidence is in
the place to be searched. The nexus between the place to be searched
and the items to be seized may be established by the type of crime,
the nature of the items, and the normal inferences where a criminal
would hide the evidence.
State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993) (citations omitted); see also State v. Jason Miller,
No. 03C01-9402-CR-00065, 1995 Tenn. Crim. App. LEXIS 670, at *6 (Knoxville, August 9, 1995).
This court has observed that “[t]he facts which connect a crime or criminal activity
to the premises to be searched are critical and must be included in an affidavit for a search warrant.”
Miller, No. 03C01-9402-CR-00065, 1995 Tenn. Crim. App. LEXIS 670, at **5-6. Yet, there is no
information contained in the affidavit to support the statement that the drugs would be located at the
Smyrna residence, as opposed to the Nashville residence. This court has recently noted that, for
example, “‘[t]he police may have absolute proof that the defendant sold drugs on a street corner . .
. but officers cannot search the home of the defendant for drugs without some information that the
drugs are in the defendant’s home.’” State v. Frank Michael Vukelich, No. M1999-00618-CCA-R3-
CD, 2001 Tenn. Crim. App. LEXIS 734, at **33-34 (Nashville, September 11, 2001) (quoting David
L. Raybin, TENNESEE CRIMINAL PRACTICE AND PROCEDURE § 18.70) (alteration in original).
Unlike other circumstances considered by this court, the facts set forth in this affidavit
cannot support a reasonable inference that drugs would be located at the Smyrna residence. For
example, in Vukelich, No. M1999-00618-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 734, at
**36-37, this court emphasized that the affidavit contained specific information that the police had
been investigating the defendant for two years, the defendant was a large-scale marijuana dealer, the
police had previously seized drugs from another residence of the defendant and from the defendant’s
car, there was a large amount of contraband involved, and, in the officer’s experience, the drugs
would be found in the location to be searched. In the instant case, the affidavit does not indicate the
amount of drugs involved, a past history of drugs, or extensive investigation, nor does the affidavit
set forth specific allegations to establish a connection between the drug sales and the Smyrna
residence. There is only a conclusory statement that “Walter Holmes stores his drugs and monies
in a residence in Smyrna, Tennessee, Rutherford County.” Accordingly, we conclude that the
information set forth in the warrant did not establish probable cause to search the Smyrna residence.
Specifically, we note that
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[t]o have concluded that probable cause was present to search
appellant’s residence on the basis of this affidavit required conjecture
and speculation on the part of the issuing magistrate. The United
States and Tennessee Constitutions do not allow, and we therefore
cannot uphold, a search of a citizen’s home on such a dearth of
specific facts.
State v. Harvill Gilbert, No. 01C01-9311-CC-00383, 1995 Tenn. Crim. App. LEXIS 168, at *16
(Nashville, March 3, 1995).
III. Conclusion
Accordingly, we reverse the judgment of the trial court and vacate the appellant’s
conviction.
.
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NORMA McGEE OGLE, JUDGE
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