State v. Jacqueline Stepherson , 1999 Tenn. Crim. App. LEXIS 937 ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST 1999 SESSION
September 24, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9812-CC-00478
Appellee, )
) MAURY COUNTY
VS. )
) HON. ROBERT L. JONES,
JACQUELINE STEPHERSON, ) JUDGE
)
Appellant. ) (Certified Question of Law)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN S. COLLEY III PAUL G. SUMMERS
710 N. Main Street Attorney General and Reporter
P. O. Box 1476
Columbia, TN 38402-1476 LUCIAN D. GEISE
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
T. MICHAEL BOTTOMS
District Attorney General
JESSE DURHAM
LAWRENCE R. NICKELL, JR.
Asst. District Attorneys General
10 Public Square
P. O. Box 1619
Columbia, TN 38402-1619
OPINION FILED:
REVERSED AND DISMISSED
JOE G. RILEY, JUDGE
OPINION
Defendant, Jacqueline Stepherson, pled guilty to possession of cocaine over
0.5 grams with intent to sell and possession of marijuana over ½ ounce with intent
to sell. Pursuant to a plea agreement, defendant received concurrent suspended
sentences of eight (8) years and one (1) year, respectively. The defendant with the
consent of the state and the trial court reserved a certified question of law relating
to the search and seizure of the drugs and certain banking records. See Tenn. R.
Crim. P. 37(b)(2)(i). The issues presented on appeal are as follows:
1. whether the search warrant was invalid when the
issuing magistrate designated an officer who was not
present at the time of issuance as the officer to whom
it was delivered for execution;
2. whether the search warrant affidavit provided sufficient
probable cause for issuance;
3. whether the executing officers sufficiently complied with
the “knock and announce” requirement; and
4. whether violation of the Financial Records Privacy Act
requires suppression of the financial records seized
from the bank.
We find merit only as to the first issue. Although the result may indeed be harsh,
the plain and unambiguous language of Tenn. R. Crim. P. 41(c) requires us to
REVERSE and DISMISS.
SEARCH WARRANT
The search warrant affidavit was executed shortly after midnight on April 16,
1997, by Officer Tommy G. Goetz, a narcotics investigator. The pertinent parts of
the affidavit are summarized as follows:
1. The Maury County Drug Task Force had the defendant
under investigation for several months for trafficking in
illegal narcotics.
2. On February 21, 1997, a “confidential informant” gave
agents with the Drug Task Force information concerning
the sale of illegal narcotics in an unrelated matter. The
agents obtained a search warrant as a result of this
information and seized illegal narcotics.
3. On January 15, 1997, and February 19, 1997, this
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same informant provided information concerning the
defendant dealing in large amounts of cocaine from her
residence. The confidential informant referred to the
defendant as “Ms Jackie” who had two sons, Vern and
Ronnie, who distributed the cocaine. “Ms Jackie” was
“the boss.”
4. The confidential informant described the vehicles driven
by Vern and Ronnie as a Tahoe and a Camero. Agents
with the Drug Task Force verified that the defendant
had a Tahoe and Camero registered in her name.
5. The confidential informant stated that the defendant
and her sons were in possession of numerous guns that
were “bigger” than the weapons possessed by law
enforcement. The informant was very afraid of the
defendant and her sons.
6. The confidential informant had been in the defendant’s
residence on numerous occasions and had seen large
amounts of cocaine and cash.1
7. Agents of the Drug Task Force corroborated that the
defendant lived at the residence described by the
confidential informant and that at least two males,
Ronnie and Vern, lived at the same residence.
8. On April 15, 1997, the affiant received information from
a “citizen” that had given historical information about the
defendant that had previously been verified. The citizen
stated that the defendant had come in from out-of-state
“today” with a large quantity of cocaine.
9. The citizen stated that the defendant and her sons,
Ronnie and Vern, would be distributing the cocaine
from defendant’s residence.
10. The citizen had seen several weapons, large amounts
of cocaine and cash on numerous occasions at the
residence.
11. The citizen stated that Vern drove the Tahoe and
Ronnie drove the Camero.
12. The citizen stated that the defendant got her supply of
cocaine from “Shawn Cooper” in Alabama. The affiant,
Officer Goetz, stated that Shawn Cooper was presently
under felony indictment in Maury County for the
possession of cocaine for resale. Agents with the Drug
Task Force verified that the defendant made numerous
telephone calls to Shawn Cooper in Alabama.
13. In an earlier unrelated matter, a law enforcement officer
attempted to summon the defendant to the door of her
residence. They received no response but noticed two
vehicles in the driveway. Shortly after the officer left the
residence, the officer talked by telephone to a person at
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The affidavit gives no further indication of when these occasions were.
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the residence who identified herself as “Jacqueline
Stepherson.”
14. Officer Goetz stated that he believed an immediate
entry after knocking was necessary due to the presence
of numerous guns in the residence. He stated that he
believed there was a large amount of cocaine and cash
from the sale of cocaine in the residence.
15. Officer Goetz further stated that he had 15 years
experience as a police officer and 10 years as a
narcotics investigator. He had participated in the
execution of over 100 search warrants involving
narcotics trafficking. His investigations led to over 100
felony convictions in both federal and state courts on
drug related charges.
16. Based upon his experience, Officer Goetz stated that
drug dealers commonly have weapons in their
residence in order to protect and secure their illegal
profits. This is because drug dealers were often the
victims of robberies during drug transactions.
The magistrate issued the warrant at 12:25 a.m. on April 16, 1997. The
warrant contained the magistrate’s certification that “I have delivered this search
warrant for execution to: Officer Bill Doelle.” It is undisputed that Officer Doelle was
not present at that time; the search warrant was actually physically delivered by the
magistrate to Officer Goetz; and Officer Goetz subsequently gave it to Officer
Doelle. Both Officers Doelle and Goetz participated in the search and seizure at
defendant’s residence.
The search warrant was executed at defendant’s residence approximately
two to three hours after its issuance. Several officers from the Drug Task Force and
Columbia S.W.A.T. team participated in its execution. Officers approached two
separate entrances to the residence, knocked, announced their identification and
request for entry, counted to four and simultaneously entered by knocking down the
doors with “battering rams.” “Flash bangs,” devices which make a “big flash and a
bang,” were also used. The search and seizure ensued.
Several days after the search and seizure, the trial court signed an ex parte
order authorizing the seizure of defendant’s banking records. Defendant contends
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the seizure was not in compliance with the Financial Records Privacy Act.
DESIGNATION OF OFFICER FOR EXECUTION OF WARRANT
Officer Goetz was the affiant and only officer who personally appeared
before the issuing magistrate. Although the issuing magistrate physically delivered
the search warrant to Officer Goetz, the issuing magistrate endorsed “Officer Bill
Doelle” as the person to whom it was delivered for execution. Officer Goetz
subsequently gave the search warrant to Officer Doelle prior to its execution, and
both officers participated in its execution. Defendant contends the issuing
magistrate’s improper designation of Officer Doelle as the person to whom the
warrant was delivered for execution was fatal to its validity. We must agree with
this contention.
Tenn. R. Crim. P. 41(c) provides in pertinent part as follows:
The search warrant shall be directed to and served by
the sheriff or any deputy sheriff of the county wherein
issued, any constable, or any other peace officer with
authority in the county.... The magistrate shall endorse
upon the search warrant the hour, date, and name of
the officer to whom the warrant was delivered for
execution.... Failure of the magistrate to endorse
thereon the date and time of issuance and the name of
the officer to whom issued... shall make any search
conducted under said search warrant an illegal search
and any seizure thereunder an illegal seizure.
(emphasis added)
The state contends the search warrant was “directed toward any Maury
County peace officer;” Officer Doelle was, in fact, an executing officer; and he
signed the return. The state argues this is sufficient compliance.
Tenn. R. Crim. P. 41(c) provides that a search warrant may be “directed to
and served by” any peace officer with authority in the county. A separate provision
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of the rule requires an endorsement by the magistrate of the officer to whom the
warrant was “delivered for execution.” The latter provision obviously requires the
personal presence of the officer to whom it was “delivered for execution” by the
issuing magistrate. The language in the “fatal” clause concerning the failure to
“endorse ... the name of the officer to whom issued” relates to the requirement to
“endorse ... [the] name of the officer to whom the warrant was delivered for
execution.”
The state’s reliance upon State v. Smith, 868 S.W.2d 561 (Tenn. 1993),
State v. Pigford, 572 S.W.2d 921 (Tenn. 1978), and State v. Robinson, 622 S.W.2d
62 (Tenn. Crim. App. 1981), is misplaced. These cases address those authorized
to execute a search warrant, not the failure of the magistrate to endorse the name
of the officer to whom it was delivered.
Where the issuing magistrate fails to endorse on the warrant the hour, date,
and name of the officer to whom it is delivered for execution, the search is illegal.
Evans v. State, 354 S.W.2d 263, 264 (Tenn. 1962); Talley v. State, 345 S.W.2d
867, 869 (Tenn. 1961). These two cases were decided under the former statute
which required the issuing magistrate to endorse on the search warrant “the name
of the officer to whom the warrants were delivered for execution .... Failure to
comply with this section shall make any search ... an illegal search and seizure.”
Tenn. Code Ann. § 40-518 (repealed 1979). Virtually identical language was carried
over into Tenn. R. Crim. P. 41(c) upon its adoption. Therefore, it is clear that Tenn.
R. Crim. P. 41(c) makes fatal the failure to properly endorse the name of the officer
to whom the warrant was delivered for execution.
The express language of the rule provides that the “failure to endorse
thereon ... the name of the officer to whom issued” renders the search and seizure
“illegal.” Tenn. R. Crim. P. 41(c). This language is plain, mandatory and must be
followed. See State v. Steele, 894 S.W.2d 318, 319 (Tenn. Crim. App. 1994).
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This result seems harsh to this panel. Neither the United States Constitution
nor the Tennessee Constitution requires such an endorsement. This state, like
other states, has imposed requirements that go beyond constitutional requirements.
See LaFave, Search & Seizure, § 4.12 (3d ed 1996). It is not uncommon for such
provisions to be characterized as directory or ministerial so that their violation does
not render the evidence inadmissible. Id. However, the express language of Tenn.
R. Crim. P. 41(c) leaves this Court no option. Only an amendment to the rule can
effect a different result.
In fact, the history of Tenn. R. Crim. P. 41(c) reflects this conclusion. By
order entered January 31, 1984, the Tennessee Supreme Court proposed to the
General Assembly that Tenn. R. Crim. P. 41(c) be amended by changing the last
sentence so as to make the search and seizure illegal only when due to “[a] failure
to substantially comply with the material requirements of this subsection ....” The
proposed comment stated that the proposed amendment “is intended to modify the
harsh remedy present under the [current] rule for purely technical violations of the
search warrant requirements.” By order entered May 11, 1984, the Tennessee
Supreme Court withdrew and deleted these proposals. Thus, the “harsh remedy”
remains.
We, therefore, conclude that the warrant was fatal since it was not delivered
by the issuing magistrate to the person so stated in the warrant.
PROBABLE CAUSE - INFORMANTS
Although unnecessary for the disposition of this appeal, we will address the
other issues in the event of an appeal to the Supreme Court of Tennessee.
The trial court found that the information from the first informant indicating
drug activity on January 15 and February 19, 1997, did not alone provide a sufficient
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basis to establish probable cause for the possession of contraband on the date of
issuance of the warrant, April 16, 1997. We agree with the trial court that this
information alone was too “stale” to establish probable cause. See State v. Curtis,
964 S.W.2d 604, 616 (Tenn Crim. App. 1997).
The trial court further concluded the second informant did not qualify as a
“citizen informant.” Again, we agree with this ruling as there is insufficient
information in the affidavit to establish this fact. See State v. Stevens, 989 S.W.2d
290, 295 (Tenn. 1999).
Accordingly, the trial court properly determined that the information provided
by the informants must meet the two-prong test adopted in State v. Jacumin, 778
S.W.2d 430, 436 (Tenn. 1989). The two-prong test requires both “(1) the basis for
the informant’s knowledge and either (2)(a) a basis establishing the informant’s
credibility or (2)(b) a basis establishing that the informant’s information is reliable.”
Stevens, 989 S.W.2d at 294 (citing State v. Cauley, 863 S.W.2d 411, 417 (Tenn.
1993)).
We consider the following portions of the search warrant affidavit significant
in determining the basis of knowledge and reliability of the information. Defendant
had been under investigation by the Drug Task Force for several months. Although
the information from the first informant alone was too stale to support probable
cause, the magistrate could properly consider the first informant “reliable” since
earlier information provided by the informant led to the seizure of illegal narcotics.
Thus, the magistrate could properly conclude from information from the first
informant that the defendant previously had large amounts of cocaine in the
residence, albeit at a time significantly prior to the date of the affidavit. The identity
of the defendant and her two sons and the location of the residence were
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corroborated by the officer. The officer also independently verified that the
defendant had talked by phone on numerous occasions to a suspected drug dealer
in Alabama who was under felony indictment in Maury County for possession of
cocaine for resale. The second informant had also seen large amounts of cocaine
at defendant’s residence on several prior occasions, although the exact dates are
unknown.
A magistrate’s determination of probable cause is accorded “great deference”
by a reviewing court. Jacumin, 778 S.W.2d at 431-32. The standard is whether the
magistrate had a “substantial basis” for concluding that a search warrant would yield
evidence of wrongdoing. State v. Conaster, 958 S.W.2d 357, 361 (Tenn. Crim.
App. 1997)(citing Jacumin, 778 S.W.2d at 432)). When illegal activity is ongoing,
courts have generally held that the affidavit is less likely to become “stale” with the
passage of time. State v. Thomas, 818 S.W.2d 350, 357 (Tenn. Crim. App. 1991).
The reliability of an informant as well as the information furnished must be
judged from all the circumstances and from the entirety of the affidavit. Cauley, 863
S.W.2d at 417. Furthermore, independent police corroboration can make up
deficiencies either as to the basis of knowledge or reliability. State v. Henning, 975
S.W.2d 290, 295 (Tenn. 1998); Jacumin, 778 S.W.2d at 436.
We conclude that the affidavit, taken in its entirety, indicates ongoing illegal
activity. This is especially true considering the independent corroboration by the
authorities. Thus, the magistrate had a substantial basis for concluding that cocaine
would be present at the residence shortly after the issuance of the warrant. The
Jacumin two-prong test was satisfied.
This issue is without merit.
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KNOCK AND ANNOUNCE
Defendant contends that the officers violated the “knock and announce”
requirement by waiting only four seconds prior to the forced intrusion into the
residence. We conclude that compliance with the “knock and announce” doctrine
was not required under the facts and circumstances of this case.
Compliance with the “knock and announce” doctrine is not required if the
officers have a reasonable suspicion that knocking and announcing would be
dangerous, futile, or allow the destruction of evidence. Henning, 975 S.W.2d at 300
(citing Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 1421, 137 L. Ed. 2d 615(1997)). In this instance the officers had information from one informant that the
defendant and her sons possessed numerous guns that were “bigger” than the
weapons possessed by law enforcement. Information from the other informant also
indicated that the informant had seen several weapons on numerous occasions at
the residence. Furthermore, the officers had reason to believe that on a prior
occasion the defendant did not come to the door when summoned by an officer.
Although we agree that the four-second wait after the knock and announce was
insufficient to satisfy a knock and announce time requirement, we conclude the
information possessed by the officers was sufficient to excuse compliance with the
knock and announce requirement.
This issue is without merit.
FINANCIAL RECORDS PRIVACY ACT
Finally, defendant contends there was a violation of the Financial Records
Privacy Act relating to the subsequent seizure of defendant’s banking records from
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the bank. See Tenn. Code Ann. § 45-10-101 et seq. We need not address this
issue. The case is before this Court upon a certified question of law after entry of
a guilty plea. As such, a certified question of law must be dispositive of the case.
See Tenn. R. Crim. P. 37(b)(2)(i). Generally, an issue is dispositive only when the
appellate court must either affirm or reverse and dismiss. State v. Wilkes, 684
S.W.2d 663, 667 (Tenn. Crim. App. 1984).
This issue is not dispositive. If the initial search of the residence is valid, the
state can still proceed to prosecution without the bank records. If the initial search
is invalid as we have held, the state may not proceed to prosecution regardless of
whether the banking records were properly seized.
Accordingly, this issue is not properly before this Court.
CONCLUSION
Due to the non-compliance with Tenn. R. Crim. P. 41(c), the judgment of the
trial court is REVERSED and the case DISMISSED.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
THOMAS T. WOODALL, JUDGE
____________________________
L. T. LAFFERTY, SENIOR JUDGE
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