State v. James Usery ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBE R SESSION, 1998
FILED
August 4, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9805-CC-00154
Cecil Crowson, Jr.
)
Appellate Court Clerk
Appellee, )
)
) WEAKLEY COUNTY
VS. )
) HON. WILLIAM B. ACREE
JAMES NORMAN USERY, ) JUDGE
)
Appe llant. ) (Certified Q uestion— Search Wa rrant)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF WEAKLEY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
GARRY BROWN JOHN KNOX WALKUP
P.O. Box 505 Attorney General and Reporter
Milan, TN 38358
PETER M. COUGHLAN
Assistant Attorney General
425 Fifth Avenu e 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 ON REMA ND FILED ________________________
REVERSED; CONVICTION VACATED
DAVID H. WELLES, JUDGE
OPINION ON REMAND
This certified question of law was remanded to us by the Tennessee
Supreme Court for reconsideration in light of its opinion in State v. Stevens, 989
S.W.2d 290 (Tenn. 1999), clarifying when the presumption of reliability may be
triggered by an affidavit pledging informa tion gathe red from a “citizen info rmant.”
Upo n revie w of the court’s decision in Stevens, we modify our opinion to reflect
our decision that the affidavit sworn in this case fails to me et the stan dard to
realize a presu mption of reliability. The refore, we reverse th e order o f the trial
court overruling the mo tion to suppress, vacate the Defendant’s conviction, and
dismiss this case.
In the original opinion of this Court, penned by former Judge Paul G.
Summers, we upheld the validity of the search based upon information provided
in the affid avit sworn by Lieutenant Joey Radford of the Greenfield Police
Department. That affidavit recounted,
A citizen informant has bee n in the residenc e in the past 72 h ours
and has directly witnessed white powder substance, green plant
mate rial, paraphernalia, weapons, and contraband associa ted with
the use of controlled substances. This citizen informant is familiar
with controlled substances.
In addition, Radford checked a box next to the language, “The affiant has
received informa tion from a reliable citize n inform ant.”
In Tennessee, when an a ffidavit sw orn to p rocure a sea rch wa rrant is
supported by information provided by a confidential informant, a finding of
probable cause requires a factual showing of (1) the basis of knowledge of the
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informa nt, and (2) the reliability or veracity of the inform ation or the informa nt.
See State v. Jacu min, 778 S.W.2d 430 (Tenn. 1989) (adopting the former federal
jurisprudence of Aguilar v. Texas, 378 U.S . 108 (1964), and Spinelli v. United
States, 393 U.S. 410 (1969)). However, the law of our state recognizes a
distinction between information provided by citizen informants and by the type of
profes siona l, compensated informant from the “criminal milieu”—presuming the
former informa tion inhere ntly reliable. State v. Melson, 638 S.W.2d 342 (Tenn.
1982). To be entitled to this presum ption of a heightened degree of reliability, the
face of the affida vit must demo nstrate that the inform ant is n ot a “crim inal”
informa nt, but rathe r a conce rned citize n.
Relying on Melson and its proge ny, we affirme d the e xistenc e of pro bable
cause sufficient to s upport th e warran t in this case . See State v. James Norman
Usery, No. 02C01-9805-CC-00154, 1998 W L 8323 54 (Te nn. Crim . App.,
Jackson, Dec. 2, 1 998). Ho wever, in ligh t of the Tennessee Supr eme Cour t’s
opinion in State v. Stevens, 989 S.W.2d 290 (Tenn. 1999), we conclude that the
affidav it does n ot establish probab le cause due to its failure to satisfy the second
Jacu min prong, veracity or reliability of the informant or the information.
In Stevens, officers obtained a search warrant based upon the following
attested information:
An adult conce rned c itizen so urce w ho is
believed to be credible and liable [sic] and who resides
in Henry Co unty and ha s family ties to Henry C ounty
has told the affiant that they had seen
methamphetamine being stored and cooked within 72
hours prior to the swearing of this affidavit at the above
stated residenc e. The citizen to ld the affiant that they
had seen se veral flask [sic ], tubes, hot plate [sic] and
several jugs sat [sic] up in the rear room of the
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residence. The citizen told the affiant of the cooking
process they had seen and the affiant having
knowledge of the cooking process, believed the citizen
to be reliable and truthful in their [sic] information. The
citizen ask [sic] for n o paym ent for their [sic]
information and acted on civic duty. Based on the
above stated information the affiant believes that
Williams is cooking and storing methamphetamine at
the said resident [sic]. The citizen source was
furnished with the finished product of what they [sic]
had seen being cook ed an d imm ediate ly turned o ver to
Officer Wyrick and Officer Eaker. The product was
field tested and product was found to be
methamphetamine. The affiant asked that the search
warrant be valid up to 48 hours for securing and
execu tion of the search warrant to allow D.E.A.
participation from agents outside the state.
Stevens, 989 S.W .2d at 292 (qu oting the affidavit). The su preme co urt found this
language insufficient to trigger the Melson presumption of reliability, noting that
“[t]he affidavit c ontain ed on ly conclusory allegations that the informant was a
‘concerned citizen source,’ ‘acted on civic duty,’ and ‘ask [sic] for no payment for
their [sic] information.’” Id. at 294. Furtherm ore, stated the court, “There is no
explanation as to why the citizen was in the house while methamphetamine was
being cooked and/or why the citizen was ‘fu rnishe d with th e finish ed pro duct.’ .
. . The unexplained circumstances warrant caution in determining whether the
informant is a pre sumptively reliable citizen .” Id.Regarding an informant who is present while narcotics are being
manufactured or packaged, for example, the Stevens court relied on the following
passage from Professor LaFave:
[A]s a general proposition it is an informant from the
criminal milieu rather than a law ab iding c itizen w ho is
most likely to be present under such circumstances.
This is not to suggest that a person giving information
about the location of narco tics may never qualify as a
citizen-informer, for it is sometimes possible to show
with particularity how a law-abiding individual
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happened to come upon such knowledge. Rather, the
point is that in such a case it should not be deemed
sufficient that the police have alleged in a rather
conclusory fashion that the person was “an individual
who is neither a paid nor habitual inform ant,” “a
respo nsible citizen of utmost character and integrity” or
“a reputable member of the community.” Perhaps a
more particularized showing of the law-abiding n ature
of the per son su pplying the informa tion will suffice.
Id. at 294-95 (quoting Wayne R. LaFave, 2 Search an d Seizure § 3.4(a) (3d ed.
1996) (first emphasis added in Stevens) (seco nd em phas is in orig inal) (footnotes
omitted in Stevens). After deciding that the Melson standard did not apply, the
supreme court h eld that under a tradition al Jacu min standard, the affidavit was
sufficie ntly reliable to esta blish p robab le cau se to s uppo rt the se arch w arran t in
that case. Id. at 295. The court based its finding of reliability on the allegation
that a positive field test was p erforme d on the narcotics given to th e informant.
Id.
In the case at bar, the information indicating that the informant was a
“citizen-infor mant” does not meet the standard for a presumption of reliability
according to Stevens. Lieutenant Ra dford provided n o more tha n concluso ry
allegations that the informa tion was fu rnished by a “citizen -informa nt know n to
the affiant.” In addition, the lieutenant gave no explanation why the informant had
been present in Defendant’s residence and privy to the exis tence o f white
powder, drug paraphernalia, green plant material, weapons, and contraband
associated with controlled substances.
Furthermore, resortin g to a tra ditiona l Jacu min analysis of veracity or
reliability, we find no alle gation simila r to that m ade in Stevens which would
factually ind icate the reliability of the inform ant or the informa tion. The veracity
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prong therefore has not been satisfied; and the search wa rrant iss ued in this
case, pursuant to which the principal evidence in this case was seized, was not
supported by probable cause.
Therefore, we must reverse the order of the trial court overruling the motion
to suppress. We vacate the Defendant’s conviction and remand this case to the
trial court for dism issal of the in dictme nt base d upon lack of pro bable ca use to
suppo rt the searc h warran t.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
(Not Participating)____________________
PAUL G. SUMMERS, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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