State v. James Usery ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER 1998 SESSION
FILED
December 2, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9805-CC-00154
Appellee, )
) Weakley County
V. )
) Honorable William B. Acree, Judge
)
JAMES NORMAN USERY, ) (Possession of Controlled Substance)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Garry Brown John Knox Walkup
Attorney at Law Attorney General & Reporter
Crocker Law Firm
P.O. Box 505 Peter M. Coughlan
Milan, TN 38358 Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
Thomas A. Thomas
District Attorney General
Allen Strawbridge
Assistant District Attorney General
P.O. Box 218
Union City, TN 38261
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
This is an appeal based upon a certified question of law pursuant to
Tennessee Rule of Criminal Procedure 37(b)(2)(iv). Relying on information
supplied by an unnamed informant, Lieutenant Joey Radford of the Greenfield
Police Department swore out an affidavit in support of a warrant to search the
home of the appellant, James Norman Usery. A warrant was issued; and the
ensuing search yielded a small quantity of methamphetamine, marijuana, and
drug paraphernalia. The appellant filed a motion to suppress this evidence,
challenging the validity of both the affidavit and the warrant. Following a hearing,
the trial court overruled the motion. The appellant entered a plea of guilty to
possession of a schedule II controlled substance with intent to sell, reserving the
right to appeal his challenge to the legality of the search. All below agree that
these issues are dispositive of this case.
The appellant argues that the affidavit failed to establish probable cause
for the issuance of the warrant for two reasons. First, the affiant failed to
establish the reliability or credibility of his informant or provide a basis for the
determination that the informant was a “citizen informant” and, second, the
affidavit failed to describe with sufficient particularity what illegal property the
appellant was alleged to possess. The warrant, he argues, is facially defective
because it fails to describe the property to be seized with sufficient particularity.
We find these issues to be meritless and affirm the judgment of the trial court.
Lieutenant Radford’s affidavit provided 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
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familiar with controlled substances.” Under the veracity prong, Lieutenant
Radford checked a box next to the language, “The affiant has received
information from a reliable citizen informant known to the affiant.”
When, as here, an affidavit is based upon the hearsay statements of an
informant, proof of the veracity of the informant may be subject to one of two
standards. With regard to criminal or professional informants, Tennessee
follows the approach of Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v.
United States, 393 U.S. 410 (1969), which requires a factual showing that the
source is credible or his information reliable. See State v. Jacumin, 778 S.W.2d
430 (Tenn. 1989). On the other hand, when information is supplied by a “citizen
informant” or “an informant not from the criminal milieu,” reliability is presumed,
see State v. Melson, 638 S.W.2d 342 (Tenn. 1982); and “the state is not
required to establish either the credibility of the informant or the reliability of his
information.” State v. Cauley, 836 S.W.2d 411, 417 (Tenn. 1993). Instead, “the
reliability of the source and the information must be judged from all the
circumstances and from the entirety of the affidavit.” Id. (quoting Melson, 638
S.W.2d at 356 (Tenn. 1982)). The affidavit must “intrinsically accredit[] the
informant.” State v. Smith, 867 S.W.2d 343, 348 (Tenn. Crim. App. 1993).
Under the Jacumin standard, the affidavit in the present case would fail.
Thus, the determinative question is whether the affidavit as a whole, including
the affiant’s description of the informant as “a reliable citizen informant known to
the affiant,” is sufficient to accredit the informant and allow a neutral and
detached magistrate to characterize him or her as a “citizen informant,” making
applicable the more lenient Melson standard.
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In State v. Smith, 867 S.W.2d 343, 348 (Tenn. Crim. App. 1993), this
Court determined that the Melson standard was inapplicable when “there [was]
nothing in [the] affidavit [stating that the informant] was a bystander witness, a
victim, or otherwise a "citizen informant." We further stated,
It is incumbent, we think, upon whoever seeks a search
warrant to include in the affidavit whether the informational
source, named or confidential, qualifies as a citizen informant.
Otherwise, the issuing magistrate would not know which
standard, Jacumin or Melson, to apply. Whether the affidavit
describes the status of the source directly, by implication, or
by inference, is immaterial; it must, however, be apparent
before the less stringent Melson standard can be used to test
the validity of the warrant.
Id. at 348 (emphasis added).
In the present case, Lieutenant Radford directly stated that he knew the
informant, that he or she was a reliable person, and that he or she was a citizen
informant. While we might be troubled by the bare conclusory statement of an
affiant that an informant is a citizen informant, that is not the case here.
Although only minimally descriptive, the affiant did state that he knew the
informant, thus giving the magistrate some basis on which to judge the credibility
of the information provided by the affidavit. That is, the magistrate had before
him a person whose credibility he could judge. That person, Lieutenant Radford,
swore that he knew the informant and that he or she was reliable. The
magistrate, therefore, had a substantial basis for crediting the hearsay affidavit.
See Melson, 638 S.W.2d at 354-55.
Again, the affidavit states that the informant “has been in the residence in
the past 72 hours and has directly witnessed white power substance, green plant
material, paraphernalia, weapons, and contraband associated with the use of
controlled substances. This citizen informant is familiar with controlled
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substances.” The appellant argues that, rather than accredit the informant, this
information is exactly the type that might be expected from a criminal informant
and, therefore, suggests that the informant is other than the typical citizen
informant. We cannot agree. We suspect that many average citizens would
readily recognize illegal drugs and drug paraphernalia. That an informant
recognizes such material is as likely to indicate that he or she watches the
evening news or popular movies as it is to indicate involvement with the criminal
milieu.
The appellant also argues that the affidavit fails to allege with sufficient
particularity that the appellant possessed illegal property. As quoted above, the
affidavit provides a description of several materials that is consistent with a
description of controlled substances; it states that the informant is familiar with
controlled substances, and it alleges the presence of “contraband associated
with the use of controlled substances.” The appellant argues that the affidavit
describes no illegal items. That is, the appellant argues that the affidavit does not
allege the presence of controlled substances and, even if it does, an allegation of
the presence of controlled substances is only sufficient if it also alleges unlawful
possession. See State v. Johnson, 854 S.W.2d 897, 900 (Tenn. Crim. App.
1993) (finding a reference to “drugs” to be insufficient, as drugs may be either
lawfully or unlawfully possessed). The appellant argues that the only illegal item
alleged by the affidavit to have been in his possession was “contraband.”
Contraband, he notes, is any property that it is unlawful to possess. An affidavit
alleging only the presence of contraband fails to provide probable cause as to
the possession of any particular illegal property, and a warrant issued on such a
basis would constitute a general warrant in violation of Article I Section 7 of the
Tennessee Constitution.
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While we agree that an affidavit alleging only the presence of contraband
would be insufficient, the affidavit must be read as a whole. See Cauley, 836
S.W.2d at 417. In the present case, the affidavit relates the presence of
substances by a description that is consistent with that of certain controlled
substances. Moreover, it does not merely allege contraband, but rather,
“contraband associated with the use of controlled substances.” We find such
language to be clearly sufficient, when the affidavit is read as a whole, to identify
with particularity the illegal items alleged to have been in the appellant’s
possession.
Finally, and along similar lines, the appellant argues that the search
warrant is facially defective in that it does not describe the property to be seized
with sufficient particularity. See Tenn. Code Ann. § 40-6-103 (requiring search
warrants to “particularly describ[e] the property”). The warrant authorized a
search for “white powder material, green plant material, paraphernalia, weapons
and contraband to wit.” From the plain language of the warrant, we have no
difficulty in discerning with particularity the items to be seized.
The judgment of the trial court overruling the appellant’s motion to
suppress is affirmed.
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__________________________
PAUL G. SUMMERS, Judge
CONCUR:
_____________________________
DAVID H. WELLES, Judge
_____________________________
JOE G. RILEY, Judge
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