State of Tennessee v. Stacy L. Mack and Martress Shaw ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
July 9, 2003 Session
STATE OF TENNESSEE v. STACY L. MACK and MARTRESS SHAW
Direct Appeal from the Circuit Court for Lauderdale County
No. 7237 Jon Kerry Blackwood, Judge
No. W2002-01828-CCA-R3-CD - Filed January 22, 2004
The defendants appeal their convictions of possession of more than 0.5 grams of cocaine with intent
to deliver. The defendants allege error in the trial court’s failure to suppress evidence seized
pursuant to a search warrant and denial of their motions for judgment of acquittal. Upon review, we
reverse the failure to suppress the search warrant and reverse and dismiss the convictions of both
defendants. The conviction of Stacy Mack is reversed due to insufficiency of the evidence, and
Martress Shaw’s conviction is reversed due to insufficiency of evidence after suppression of the
search warrant.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed and
Dismissed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
joined. ROBERT W. WEDEMEYER , J., filed a separate opinion dissenting in part and concurring in
part.
William Dan Douglas, Jr., Ripley, Tennessee, for the appellant, Stacy L. Mack.
D. Michael Dunavant, Ripley, Tennessee, for the appellant, Martress Shaw.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E.
Williams, III, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey
Anne Brewer, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
This case arises from the execution of a search warrant on Defendant Mack’s residence and
the subsequent seizure of drugs and other evidence by law enforcement officials on November 2,
2001. The Lauderdale County Grand Jury indicted Defendant Mack and Defendant Shaw for
possession with intent to deliver more than 0.5 grams of cocaine. Before trial, Defendant Mack and
Defendant Shaw filed motions to suppress the drugs and drug paraphernalia seized from Defendant
Shaw’s car and Defendant Mack’s residence. Following the suppression hearing, the trial court
denied the Defendants’ motions to suppress the evidence. The Defendants were tried on April 29,
2002, in the Lauderdale County Circuit Court, and a jury convicted both of possession of more than
0.5 grams of cocaine with intent to deliver, pursuant to Tennessee Code Annotated Section 39-17-
417 (Supp. 2001). The trial court sentenced Defendant Mack to an eight year community corrections
sentence and Defendant Shaw to twenty-three years in prison. Both Defendants timely filed motions
for judgment of acquittal or a new trial, which the trial court denied. The Defendants now appeal.
A. Suppression Hearing
At the suppression hearing held on April 22, 2002, Detective Jeff Tutor, a drug investigator
for the Ripley Police Department, testified that he drafted an Affidavit for Search Warrant that he
presented to Judge Janice C. Craig on October 30, 2001, requesting a search warrant to search the
premises at 209 Volz Circle in Ripley, Tennessee. The affidavit and the search warrant were typed
on the same page, with the affidavit appearing above the search warrant. The affidavit stated:
Personally appeared before me, Investigator Jeff Tutor, Ripley Police Department,
and makes oath that he has reasons to believe that there is probable cause for
believing that Stacy Mack – is/are in possession of the following described property,
to wit: Cocaine Base and all drug paraphernalia related to the storage,
packaging, sale, and/or distribution of Cocaine Base contrary to the laws of the
state of Tennessee, upon the following described property to wit: a wood framed
single story dwelling with green siding and black shingle roof situated at 209
Volz Cir. in Ripley/Lauderdale County Tennessee, and his reasons for such belief
are that Affiant has received information within the last 72 hours from a
confidential and reliable informant that Cocaine Base could be purchased at the
above said residence. Acting upon this information Affiant did meet with,
search and wire, with an audio monitoring device, a confidential and reliable
informant. Said informant then went to the above said residence to attempt to
purchase Cocaine Base. Affiant followed said informant to the said residence
and observed said informant at said premises and Affiant heard the transaction
where the said informant purchased a substance from an individual at said
residence. Said informant then returned to Affiant with a substance that did
field test positive for Cocaine Base. He therefore asks that a warrant issue to search
the person and premises of said Stacy Mack as above described in said County,
where he believes said Cocaine Base and all paraphernalia related to the storage,
packaging, sale, and/or distribution of Cocaine Base is/are now possessed,
contrary to the Laws of Tennessee.
Based on the evidence presented in the affidavit, the judge granted Detective Tutor’s request for a
search warrant. The search warrant, which was also prepared by Detective Tutor, stated:
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Proof by affidavit having been made before me by Investigator Jeff Tutor, Ripley
Police Department that there is probable cause for believing the Laws of the State
of Tennessee have been and are being violated by Stacy Mack by having in his/her
possession Cocaine Base, and all paraphernalia related to the storage,
packaging, sale, and/or delivery of Cocaine Base, Cocaine, Marijuana being the
premises occupied by Stacy Mack said premises being a wood framed single story
dwelling with green siding and black shingle roof in Ripley, situated in
Lauderdale County, Tennessee; you are therefore commanded to make an immediate
search of the person and premises herein above described for the following property
Cocaine Base and all drug paraphernalia related to the storage, packaging, sale,
and/or distribution of Cocaine Base and if you find same, or any part thereof, to
bring it forthwith before me, at my office, in Ripley, of said County and State.
Detective Tutor testified that he did not type “209 Volz Circle” on the search warrant, rather he typed
the address on the affidavit. On cross-examination, Detective Tutor admitted that, had he been
unfamiliar with the case, he would be not be able to locate Defendant Mack’s residence using only
the search warrant.
Following the suppression hearing, the trial court denied the Defendants’ motions and made
the following findings of fact:
1. That the defendants have standing to challenge the validity of the search warrant.
2. The description of the premises to be searched contain the address of “209 Volz
Cir. in Ripley” as part of the affidavit for search warrant. Below the affidavit in
the search warrant is the warrant itself. Although “209 Volz Cir.” is not included
in the warrant, the affidavit and the warrant itself adequately describes the
property to be searched.
3. The search warrant was directed to search the premises of Stacy Mack.
4. Stacy Mack was left a copy of the warrant by the officers.
B. Trial
The following evidence was presented at the trial of the Defendants held on April 29, 2002.
Detective Tutor testified that on the night of November 2, 2001, law enforcement officers from the
Ripley Police Department and the Lauderdale County Sheriff’s Department executed a search
warrant on the residence of the Defendant Mack, located at 209 Volz Circle1 in Ripley, Lauderdale
County, Tennessee. Officer Gregg Land stated that he, along with Detective Jeff Tutor, Detective
John Thompson, Detective Brian Kelly, Officer Chris Bailey, Officer Debbie Kirkpatrick, and Tim
Mirick executed the search warrant, and searched the above address.
Detective Thompson testified that, as the detectives approached the house, they saw a dark-
colored Lincoln parked outside the residence with the lights off and the engine running. He stated
1
The street name in the suppression hearing transcript and the trial transc ript appears to be spelled phonetically,
as it is written “Bo wles Circle” rather than “V olz Cir.” as listed on the affidavit and in the defendants’ briefs.
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that it was later established that the vehicle was owned by Defendant Shaw. Thompson testified that,
as the officers approached, the lights of the vehicle were turned on and it appeared to be ready to
leave the yard in front of the house. Detective Thompson explained that he and Detective Kelly
blocked the vehicle from leaving the residence while Detective Tutor and Officer Land went up to
the house to serve the search warrant. Detective Thompson stated that Defendant Shaw was in the
driver’s seat, Defendant Mack was in the front passenger’s seat, and Reginald Donnell Connelly2 was
in the back seat.
On cross-examination, Detective Thompson testified that he did not see any unusual activity
going on in the vehicle when he approached it, nor did he see any suspicious behavior or transactions
occur between Defendant Mack, Defendant Shaw, and Connelly. Detective Thompson stated that
after Detective Tutor and Officer Land performed a protective sweep of the house, Defendant Mack,
Defendant Shaw, and Connelly were handcuffed, brought inside the house, and secured in the living
room.
Detective Thompson stated that after reading the search warrant, the officers conducted a
search of the residence. Officer Land testified that during the search of the house, he found a box
cutter in the bedroom shared by Defendant Mack and Defendant Shaw. Detective Tutor testified that
the corner of a small plastic bag was found in an open kitchen cabinet, which field-tested positive
for cocaine residue. He further testified that the box cutter discovered by Officer Land field-tested
positive for cocaine residue. Detective Thompson stated that during the course of the search, he
asked Connelly to open his mouth and saw a foreign object in Connelly’s mouth, which the officers
removed. Detective Thompson testified that the object retrieved from Connelly’s mouth was a bag
containing 1.9 grams of cocaine.
During his testimony, Detective Tutor listed the items that the officers confiscated during the
search of the house, including: three cellular telephones; some clothes which still had the tags on
them; some “high dollar jewelry;” and $395 in cash, which officers found on Defendant Shaw.
Detective Tutor testified that these types of items are often found when searching the premises of
drug dealers. He explained that drug dealers will often trade drugs for stolen clothes and jewelry.
Detective Thompson explained that the 1.9 grams of cocaine found in Connelly’s mouth had a street
value of approximately $380, roughly equivalent to the amount of cash found on Defendant Shaw.
On cross-examination, Detective Tutor acknowledged that, aside from the cocaine residue found in
the corner of the small plastic bag and on the box cutter, officers did not find any drugs, other illegal
substances, drug paraphernalia or weapons on Defendant Mack or Defendant Shaw, or in the house.
Further, he admitted that officers found no drugs, other illegal substances, drug paraphernalia or
weapons in Defendant Shaw’s vehicle. Detective Tutor admitted to having seen pay stubs from
World Color Press in the house, however, he did not confiscate this evidence because he “didn’t feel
that the pay stubs had anything to do with whether or not [Defendant Shaw] sold cocaine.”
2
Connelly’s name also appears as “Regional Do nnell Conley.”
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Defendant Mack testified that the money found on Defendant Shaw was money he earned
working at World Color Press, and that Defendant Shaw had cashed paychecks earlier that day.
Defendant Mack also explained that Connelly had been at her house working on a doghouse and that
neither she nor Defendant Shaw knew that Connelly had cocaine or from where he got it. Defendant
Mack stated that she had received the “high dollar jewelry” as birthday and Christmas gifts and that
the box cutter came from World Color Press, where Defendant Shaw worked. Defendant Shaw did
not testify at the trial.
II. Analysis
On appeal, Defendants Mack and Shaw allege: (1) that the trial court erred in denying their
motions to suppress evidence obtained pursuant to a search warrant; and (2) that the evidence
presented at trial was insufficient to support their convictions.
A. Motions to Suppress
The standard of review for a trial court’s findings of fact and conclusions of law in a
suppression hearing was established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). This standard
mandates that “a trial court’s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise.” Id. at 23; see State v. Randolph, 74 S.W.3d 330, 333 (Tenn.
2002). The prevailing party in the trial court is “entitled to the strongest legitimate view of the
evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that
may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Furthermore, “[q]uestions of
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.” Id. However, we review the
trial court’s application of the law to the facts de novo, without any deference to the determinations
of the trial court. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). The defendant bears the burden
of demonstrating that the evidence preponderates against the trial court’s findings. Odom, 928
S.W.2d at 22-23; State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
Defendants Mack and Shaw contend that the trial court erred in denying their motions to
suppress evidence obtained pursuant to a search warrant. They argue that the warrant was
insufficient “due to the fact that it [did] not set out in the warrant the location or street address of the
residence and premises to be searched.” The warrant directed Detective Tutor to search “the
premises occupied by Stacy Mack said premises being a wood framed single story dwelling with
green siding and black shingle roof in Ripley, situated in Lauderdale County, Tennessee.” The
Defendants argue that because the search warrant was insufficient, the evidence should be
suppressed since the search and seizure violated their Fourth Amendment rights under the United
States Constitution, as well as their Article 1, section 7, rights under the Tennessee constitution.
In its denial of the Defendants’ motions to suppress, the trial court found that the Affidavit
for Search Warrant contained the address, “209 Volz Cir. in Ripley.” Furthermore, the trial court
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found that, although the search warrant did not contain the address, “the affidavit and the warrant
itself adequately describe[d] the property to be searched.”
1. The Affidavit
The issue of whether an affidavit is part of a search warrant was decided by this Court in
State v. Lowe, 949 S.W.2d 300 (Tenn. Crim. App. 1996). In Lowe, this Court held that while an
affidavit is integral to the issuance of a search warrant, “it is not considered an actual part of the
search warrant.” Lowe, 949 S.W.2d at 303; State v. Smith, 836 S.W.2d 137, 141 (Tenn. Crim. App.
1992). “A search warrant may, however, be construed with a supporting affidavit if the affidavit
accompanies the warrant and the warrant expressly incorporates the affidavit by reference.” Lowe,
949 S.W.2d at 303 (citing United States v. Blakeney, 942 F.2d 1001, 1024 (6th Cir. 1991)).
Furthermore, an affidavit may be utilized to cure a deficient warrant if a “definite reference is made
to the affidavit.” Lowe, 949 S.W.2d at 304. The Tennessee Supreme Court held that if a warrant
does not describe the premises in a sufficient manner, it cannot be corrected by a description
appearing in the affidavit even though both the warrant and the affidavit are on one printed
instrument, unless the warrant “expressly adopt[ed] the description in the affidavit.” Minton v. State,
212 S.W.2d 373, 374 (Tenn. 1948). In Lowe, this Court explained that:
In sum, the presumption is that an affidavit is not part of a search warrant, even if the
two documents are served together, or are both found on the same sheet of paper. If,
however, there is explicit reference to the affidavit in the search warrant, the affidavit
may be considered part of the warrant.
Lowe, 949 S.W.2d at 304.
Having reviewed the search warrant in this case, we see no “explicit reference” to the
incorporation of the affidavit in the search warrant. The language contained in the search warrant,
“[p]roof by affidavit having been made before [the magistrate judge],” is insufficient to incorporate
the information in the affidavit into the search warrant. An accompanying affidavit “may not be
deemed to be incorporated in the warrant merely by being mentioned therein, where the ‘warrant
contained no ‘words of reference’ that can be said to have incorporated the affidavit into it.’” 2
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 4.5(a), at 84 n.38
(3d ed. Supp. 2003) (quoting United States v. Watkins, 179 F.3d 489, 495 (6th Cir. 1999)). The
Sixth Circuit of the United States Court of Appeals held that a warrant failed to incorporate the
accompanying affidavit when “[t]he only two references to the affidavit in the warrant were a
statement that an affidavit had been ‘made before [the magistrate judge],’ and that the magistrate
judge was ‘satisfied that the affidavit ... establish[ed] probable cause to believe that [the items sought
would be found on the . . . premises above-described].’” Watkins, 179 F.3d at 495. Accordingly,
we conclude that the warrant did not contain any “words of reference” to incorporate the affidavit
into it, and that, therefore, the affidavit was not properly incorporated into the search warrant.
2. Constitutionality of Search Warrant
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Because we have concluded that the affidavit was not incorporated into the search warrant,
we must now decide whether the search warrant, which did not contain the street address set out in
the affidavit, nonetheless passes constitutional muster. The Fourth Amendment to the United States
Constitution requires that a search warrant must particularly describe the premises to be searched.
This amendment states, in pertinent part, that “no warrants shall issue but upon probable cause,
supported by oath or affirmation, and particularly described the place to be searched, and the persons
or things to be seized.” Similarly, the Tennessee Constitution mandates that a search warrant must
“particularly describe” property to be searched to pass constitutional muster. Tenn. Const. Art. 1,
sec. 7. This constitutional provision states:
That the people shall be secure in their persons, houses, papers and possessions, from
unreasonable searches and seizures; and that general warrants, whereby an officer
may be commanded to search suspected places, without evidence of the fact
committed, or to seize any person or persons not named, whose offences are not
particularly described and supported by evidence, are dangerous to liberty and ought
not be granted.
(Emphasis added). The “particularity” requirement is also statutorily mandated. Tennessee Code
Annotated section 40-6-103 provides, “A search warrant can only be issued on a probable cause,
supported by affidavit, naming or describing the person, and particularly describing the property,
and the place to be searched.” Tenn. Code Ann. § 40-6-103 (2003) (emphasis added).3 The
Tennessee Supreme Court said: “It is expressly required . . . [by the statute] that the search warrant
‘particularly’ describe ‘the place to be searched.’ . . . The use of that word makes it clear that the
legislature intended the search warrant to be clear of ambiguity as to the place to be searched . . . .”
Dolen v. State, 216 S.W.2d 351, 353 (Tenn. 1948).
There are two purposes of requiring the property or premises to be particularly described in
the search warrant. State v. Vanderford, 980 S.W.2d 390, 404 (Tenn. Crim. App. 1997). First, this
requirement protects the accused from being subjected to an unreasonable search and/or seizure. Id.
Second, this requirement “prevent[s] the officer from searching the premises of one person under
a warrant directed against those of another.” Id. (quoting Squires v. State, 525 S.W.2d 686, 690
(Tenn. Crim. App. 1975)); see LaFave, supra, § 4.5, at 513 (stating that “the primary purpose of this
limitation is to minimize the risk that officers executing search warrants will by mistake search a
place other than the place intended by the magistrate”). Accordingly, the issue we must next
consider is whether the search warrant in the case under submission sufficiently described the
premises so as to meet constitutional standards.
Because, as previously mentioned, we cannot consider the affidavit as part of the search
warrant, we must now determine whether the language describing the property in the warrant as
“premises occupied by Stacy Mack said premises being a wood framed single story dwelling with
green siding and black shingle roof in Ripley, situated in Lauderdale County, Tennessee” is too
3
W e note here that this requirement is also mentioned in Rule 41(c) of the Tennessee Rules of Criminal
Procedure. The rule states in part: “If the magistrate is satisfied that grounds for the application exists . . . [he] shall issue
a warrant identifying the property and naming or describing the person or place to be searched.”
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ambiguous to pass constitutional muster. In support of the constitutionality of the warrant, the State
contends that, while the language may not seem to “particularly describe” the property, any
ambiguity is cured by the naming of Defendant Mack.
The Tennessee Supreme Court stated that, “We have held that the describing of the place to
be searched by naming the occupant satisfies the [particularity] test.” Hatchett v. State, 346 S.W.2d
258, 259 (Tenn. 1961); see Garrett v. State, 250 S.W.2d 43, 44 (Tenn. 1952) (holding that the
description directing the officer to search the house of “J.F. Garrett on the Bells Road in Madison
County” met the particularity requirement); Webb v. State, 121 S.W2d 550, 552 (Tenn. 1938)
(holding that “the description in the warrant meets the requirements of the statute . . . [by stating]
‘the dwelling house of said Joe Webb, on the Andersonville Pike, Knox County, Tennessee.’”); see
also Feagins v. State, 596 S.W.2d 108, 111-12 (Tenn. Crim. App. 1979); State v. Nelson, No.
01C01-9505-CC-00127, 1996 WL 233987, at *2 (Tenn. Crim. App., at Nashville, May, 9, 1996),
perm. app. denied (Oct. 28, 1996). In each of these cases, and the others cited by the State in the
case presently before us, the name of the defendant was included in the search warrant, as well as
the street upon which the premises to be searched was located. In all of the aforementioned cases,
the defendant’s residence was a rural one such that the defendant’s residence was commonly known
by his name. Similarly, in the search warrant in the case under submission, the Defendant is named,
but the street address is not provided. However, the record does not suggest that the Defendant’s
residence was in a rural setting. Thus, identifying the place as the defendant’s residence would not,
by itself, be sufficient. See State v. Bostic, 898 S.W.2d 242, 246 (Tenn. Crim. App. 1994).
The State would have us apply the reasoning of Bostic, wherein we stated: “[t]he possibility
of any ambiguity in the location of the defendant’s residence which might have arisen in the
execution of the warrant was negated by [the police officer’s] actual knowledge that the property was
located, in fact, as described in the warrant.” Id. at 246. However, the warrant at issue in Bostic was
not ambiguous because it lacked “a particular description” of the premises. Instead, the directions
to the subject premises which were contained in the warrant were susceptible to more than one
interpretation, thus creating an ambiguity. “Ambiguity” is a derivative of “ambiguous,” which is
defined as “open to or having several possible meanings or interpretations; equivocal.” Webster’s
New Universal Unabridged Dictionary, 64 (1996).
We are not confronted herein with an ambiguous description, i.e., one that is susceptible to
multiple interpretations, but rather the omission of important details in the description. We,
therefore, do not rely on Bostic for authority under these facts. The prior knowledge of the executing
officer would not avail to heal the infirmity caused by the omission. The requirement of particularity
means that the description must “particularly point to a definitely ascertainable place so as to exclude
all others, and enable[ ] the officer to locate the place to be searched with reasonable certainty
without leaving it to his discretion.” State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993).
Where, as in the instant case, the affidavit containing a sufficient street address appears on
the same sheet of paper as the search warrant, but it is not incorporated, then inevitably criticism of
“hypertechnicality,” may arise. In the interest of the constitutional rights to be protected, we
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conclude that inclusion of a “particular description” is a minimal requirement, as would be an
incorporation by reference of the affidavit. While the executing officer’s prior knowledge may be
sufficient to cure some defects, there must be limitations to such curatives in order to protect from
intrusions based on an overly extensive officer’s discretionary power. We hold that adhering to
particularity in description is a safeguard worthy of protection. Accordingly, we reverse the trial
court’s denial of the defendant’s motion to suppress.
B. Sufficiency of the Evidence
When an accused challenges the sufficiency of the evidence, this Court must review the
record to determine if the evidence adduced during the trial was sufficient “to support the finding
by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim.
App. 1996).
In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this Court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the
state the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. State v. Elkins, 102 S.W.3d 578,
581 (Tenn. 2003).
The trier of fact, not this Court, resolves questions concerning the credibility of the witnesses,
the weight and value to be given the evidence as well as all factual issues raised by the evidence.
Id. In State v. Grace, the Tennessee Supreme Court stated, “[a] guilty verdict by the jury, approved
by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” 493 S.W.2d 474, 476 (Tenn. 1973).
Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this Court of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); Grace, 493 S.W.2d at 476.
Although possession may be constructive in nature, it is essential that we determine whether
the defendant had constructive possession of the cocaine found in Connelly’s mouth. “Constructive
possession requires that a person knowingly have the power and the intention at a given time to
exercise dominion and control over an object, either directly or through others.” State v. Williams,
623 S.W.2d 121, 125 (Tenn. Crim. App. 1981) quoting United States v. Craig, 522 F.2d 19 (6th Cir.
1975). “In essence, constructive possession is the ability to reduce an object to actual possession.”
State v. Williams, supra, quoting United States v. Martinez, 588 F.2d 495 (5th Cir. 1979). The mere
presence, alone, of a person in an area where drugs are discovered is insufficient to support a finding
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of possession by that person. State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987).
“Likewise, mere association with a person who does in fact control the drugs or property where the
drugs are discovered is insufficient to support a finding that the person possessed the drugs.” Id.
With reference to Defendant Mack, there were no drugs or money found on her person. Her
presence in the area where drugs were found will not suffice to prove her possession. However, the
State presented evidence that Defendant Shaw had $395 in cash at the time he was searched and that
the cocaine Connelly possessed had a value of approximately $380. A rational trier of fact could
have inferred that Defendant Shaw had recently possessed the cocaine prior to selling it to Connelly.
An equally rational trier of fact could have inferred that Defendant Shaw intended to buy the cocaine
possessed by Connelly. In any event, in light of our finding that the evidence seized pursuant to the
defective search warrant should have been suppressed, the money possessed by Defendant Shaw
would be inadmissible “fruit” of the unconstitutional search. See generally Wong Sun v. United
States, 371 U.S. 471, 484 (1963)
This being the only evidence even tenuously connecting Defendant Shaw to the cocaine
possessed by Connelly, we are compelled to conclude that the evidence is insufficient to support the
convictions of both Defendants Mack and Shaw. The convictions are reversed and dismissed.
________________________________
JOHN EVERETT WILLIAMS, JUDGE
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