State of Tennessee v. Phillip Francis Morales ( 2003 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 23, 2002
STATE OF TENNESSEE v. PHILLIP FRANCIS MORALES
Direct Appeal from the Circuit Court for Blount County
No. C-12919, 12920 D. Kelly Thomas, Jr., Judge
No. E2001-01768-CCA-R3-CD
June 5, 2003
A Blount County grand jury indicted the defendant on one count of simple possession or casual
exchange of Lorazepam, a schedule IV controlled substance, and on one count of possession with
intent to sell or deliver an E felony amount of marijuana, a schedule VI controlled substance. After
unsuccessfully seeking suppression of the items seized in the search involved in this case, the
defendant waived his right to a trial by jury. At the conclusion of a bench trial, the lower court found
the defendant guilty as charged. The trial court later sentenced the defendant to concurrent terms of
eleven months and twenty-nine days for the simple possession offense and eighteen months for the
possession with intent to sell or deliver offense. Though otherwise placed on supervised probation,
the trial court ordered the defendant to serve sixteen days of these sentences on eight consecutive
weekends.1 The defendant subsequently filed a new trial motion alleging that the trial court erred
in not suppressing the aforementioned evidence and that the proof is insufficient to support the E
felony conviction. The trial court denied this motion, and the defendant appeals the denial to this
Court raising the same issues. After a review of the record and relevant authorities, we find that the
defendant’s suppression claim has merit though the sufficiency allegation does not. Because of our
finding regarding the suppression matter, we must reverse and remand the defendant’s convictions.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Reversed and
Remanded.
JERRY L.SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and JOE G. RILEY,
JJ., joined.
Mack Garner, District Public Defender, Maryville, Tennessee, for the appellant, Phillip Francis
Morales.
Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General;
Mike Flynn, District Attorney General; and John Bobo, Assistant District Attorney General, for the
appellee, State of Tennessee.
1
The d efendant also received a total fine of two tho usand seven hundred fifty dollars.
OPINION
Factual Background
On June 30, 1999, authorities associated with or assisting the Fifth Judicial Drug Task Force
executed a search warrant at 1747 Forest Hill Road. No dispute exists regarding the fact that the
defendant lived there at the time with his girlfriend. During the search the police seized various items
including: a total of 198.3 grams of marijuana, sixteen Lorazepam tablets, multiple weapons,
hemostats, rolling papers, a set of hand scales, and a box of sandwich bags. After receiving his
Miranda warnings, the defendant allegedly stated that for approximately seven hundred dollars he
received one-half of a pound of marijuana every two weeks; however, he added that he did not have
to pay for the marijuana at the time that it came into his possession. Furthermore, the investigating
officer indicated that he had observed another suspect under investigation leave a residence in the
middle of a drug deal, go to 1747 Forest Hill Road, stay for a short period of time, then return and
complete the drug transaction with a confidential informant. Upon hearing this and additional proof,
the trial court found the defendant guilty of A misdemeanor possession of Lorazepam and E felony
possession with intent to sell or deliver marijuana.
Suppression
Through his first issue the defendant asserts that the trial court erred in not suppressing the
evidence seized as a result of the search. More specifically, the defendant contends that the search
warrant was defective because the supporting affidavit did not sufficiently establish the unnamed
confidential informant’s reliability. In response, the State avers that “[t]he search warrant issued in
this case was not based upon the informant’s actions or observations but upon the observations of
the officers conducting surveillance.”
At the outset we note that “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). “The application of the law to the facts found by the trial court, however, is a question of law
which this Court reviews de novo.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
We further observe that an affidavit establishing probable cause is an indispensable
prerequisite to the issuance of a search warrant. See, e.g., Tenn. Code. Ann. § 40-6-103; Tenn. R.
Crim. P. 41(c); State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998); State v. Moon, 841 S.W.2d
336, 338 (Tenn. Crim. App. 1992). Such probable cause “must appear in the affidavit [itself] 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.” Moon, 841 S.W.2d at 338; see
also, e.g., Henning, 975 S.W.2d at 295. To sufficiently make a showing of probable cause, an
affidavit “must set forth facts from which a reasonable conclusion might be drawn that the evidence
is in the place to be searched.” State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993). Additionally,
“[t]he 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
-2-
evidence.” Id. However, a decision regarding the existence of probable cause requires that the
affidavit contain “more than mere conclusory allegations by the affiant.” State v. Stevens, 989
S.W.2d 290, 293 (Tenn. 1999); see also Moon, 841 S.W.2d at 338.
Furthermore, when, as the defendant in the instant case claims, “probable cause for a search
is based upon information from a confidential informant, there must be a showing in the affidavit
of both (1) the informant’s basis of knowledge and (2) his or her veracity.” State v. Powell, 53
S.W.3d 258, 262 (Tenn. Crim. App. 2000); see also, e.g., State v. Jacumin, 778 S.W.2d 430, 432,
435-36 (Tenn. 1989) (utilizing the standard set out in Spinelli v. United States, 393 U.S. 410, 89 S.
Ct. 584, 21 L. Ed. 2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d
723 (1964)).2 To sufficiently make such showings, the affidavit must include facts permitting “the
magistrate to determine [1)] whether the informant had a basis for his information that a certain
person had been, was, or would be involved in criminal conduct or that evidence of crime would be
found at a certain place” and 2) whether the informant is inherently credible or has reliable
“information on the particular occasion.” Moon, 841 S.W.2d at 338. Again, the courts have stressed
that conclusory statements absent supportive detail will not suffice to establish these requirements.
See, e.g., id. at 339. However, “independent police corroboration” may compensate for such
deficiencies. See Jacumin, 778 S.W.2d at 436; Moon, 841 S.W.2d at 340.
With these guidelines in mind, we turn to the instant case’s affidavit in support of the search
warrant. The pertinent portions of this affidavit provide as follows:
Personally appeared before me STEVE BLANKENSHIP of the FIFTH
JUDICIAL DRUG TASK FORCE and made oath that he has good ground and
believe, [sic] and does believe that KANDY M. LONG is/are in possession of the
following described property, namely: MARIJUANA, DRUG PARPHERNALIA,
[sic] MONIES FROM ILLEGAL DRUG SALES, AND EVIDENCE OF
DOMINION AND CONTROL. [sic] which is to be searched for in accordance with
the laws of the State of Tennessee, upon the following described premises, namely:
IN THE 911 SYSTEM THE RESIDENCE IS LISTED AS 1747 FOREST HILL
ROAD MARYVILLE, TN. . . . and his reasons for such belief are as follows:
DURING THE PAST THREE WEEKS AFFIANT HAS CONDUCTED AN
INVESTIGATION ON MARIJUANA DISTRIBUTION. DURING THE COURSE
OF THIS INVESTIGATION AFFIANT HAS SURVEILLED A SUBJECT KNOWN
AS TREVOR GARNER TO THE ABOVE ADDRESS TO PURCHASE
QUANTITIES OF MARIJUANA. DURING THE SURVEILLANCE OF
MARIJUANA BUYS SUBJECTS, THAT ARE TO REMAIN CONFIDENTIAL,
WENT TO TREVOR GARNERS [sic] RESIDENCE AND FRONTED
UNDETERMINED AMOUNTS OF MONEY TO TREVOR GARNER FOR THE
2
In Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), the United States Supreme Court
abandoned the Aguilar-Spinelli two-pronged test for evaluating the sufficiency of an affidavit involving a confidential
informant. Gates, 462 U.S. at 238, 103 S. Ct. at 2332. However, the Tennessee Supreme Court subsequently concluded
that Aguilar-Spinelli properly applied “provide[s] a more appropriate structure for probab le cause inquiries incident to
the issuance of a search warrant . . . [and] is more in keeping with the specific requirement of Article 1, Section 7 of the
Tennessee Constitution that a search warrant not issue ‘without evidence of the fact committed.’” Jacumin, 778 S.W.2d
at 436.
-3-
PURCHASE OF MARIJUANA. WITHIN THE PAST SEVENTY-TWO HOURS
A CONFIDENTIAL SOURCE WAS SURVEILLED TO TREVOR GARNERS [sic]
RESIDENCE WHERE THE CONFIDENTIAL [sic] FRONTED AN
UNDETERMINED AMOUNT OF MONEY TO TREVOR GARNER FOR THE
PURCHASE OF MARIJUANA. AFFIANT AND OTHER AGENTS OF THE
DRUG TASK FORCE SURVEILLED TREVOR GARNER LEAVING HIS
RESIDENCE AND GOING TO 1747 FOREST HILL ROAD, WHERE HE
STAYED FOR A SHORT PERIOD OF TIME AND THEN LEFT THE
RESIDENCE AND WAS SURVEILLED BACK TO HIS RESIDENCE. TREVOR
GARNER THEN GAVE APPROXIMATELY ONE OUNCE OF MARIJUANA TO
THE CONFIDENTIAL SOURCE. DURING THIS SURVEILLANCE TREVOR
GARNER DID NOT MAKE ANY STOPS GOING TO 1747 FOREST HILL ROAD
OR ANY STOPS RETURNING TO HIS RESIDENCE.
Furthermore, DURING THE COURSE OF THIS INVESTIGATION, AFFIANT
HAS LEARNED THAT TREVOR GARNER OBTAINS MARIJUANA FROM AN
INDIVIDUAL BY THE NAME OF KANDY WHO RESIDES IN A MOBILE
HOME ON FOREST HILL ROAD.
Affiant further states that he believes the information he received from this
informant/citizen to be true and correct because: THIS CONFIDENTIAL SOURCE
HAS BEEN PROMISED NOTHING IN RETURN. ALL INFORMATION
RCI E F O T I S U C H SALP O E T B T U T R U HP S D U I VSI AI N.T R U HAF NS[]E PRN EI
E E D R M H O R E A L R VN O E R E H O G AT R GN ET T S H O G FI T s XE E C N
V S G O A c i I
NARCOTICS INVESTIGATIONS HE KNOWS THESE ACTIONS TO BE CONSISTENT WITH
DRUG SALES.
Additionally, the record reflects the following findings from the trial court prior to denying the
motion:
Here, the magistrate was told that the officer has been in a three-week
marijuana investigation here in Blount County, I presume. That would be a safe
assumption. During the investigation, the officer has watched Trevor Garner go to
1747 Forest Hill Road to buy marijuana. Well, there’s nothing further said in the
affidavit about how the officer knows, but he says that he saw it. And goes on to say
that confidential informants went to Trevor Garner’s residence and gave money to
Mr. Garner to purchase marijuana. Those two sentences are in there.
Then specifically says that within the last 72 hours he watched a C.I. go to
Mr. Garner’s, gave Mr. Garner money. Then he watched – the officer watched Mr.
Garner leave his residence, go to 1747 Forest Hill Road, stay a short period of time,
go back to his own residence – that is, Mr. Garner went back to Mr. Garner’s
residence, and gave one ounce of marijuana to this confidential informant. And that
he didn’t stop anywhere going to or from 1747 Forest Hill Road.
I think it’s reasonable for the magistrate to determine that what happened in
the last 72 hours had happened before and had been observed by the officer as the
basis of what he says he saw. And that is, that he had seen Trevor Garner go to 1747
to buy marijuana and that he had seen confidential informants go to Trevor Garner’s
-4-
house to buy marijuana. So, I think the specifics of what happened in the last 72
hours was illustrative of where he got his – of how he knew what he said in these
conclusary [sic] statements in the very beginning.
Now, I don’t think that’s an impermissible leap for a magistrate to make or
for me to make. And I think given the time descriptions set out here, that he – after
the buyer arrived, Mr. Garner left, that he went straight to Forest Hill Road, that he
stayed a short period of time and returned, and then delivered the marijuana, I think
that is probable cause to think that he got marijuana at 1747 Forest Hill Road.
In reviewing this issue, we first address the State’s claim that the search warrant “was not
based upon the informant’s actions or observations but upon the observations of the officers
conducting surveillance.” We disagree.
The affidavit states that confidential “subjects” went to Trevor Garner’s residence to obtain
marijuana and fronted money there for that purpose. Furthermore, the affidavit claims that within
seventy-two hours of seeking the warrant, one confidential informant had followed this procedure
and obtained approximately one ounce of marijuana. It is plain from the document that surveilling
officers saw Garner leave the residence, go directly to the defendant’s residence, stay a short period
of time, and return therefrom without stopping elsewhere. However, the affidavit does not disclose
whether the officers actually viewed Garner and the confidential informant when the money and/or
the narcotics allegedly changed hands nor is there any indication that this was a controlled buy in
which officers electronically monitored the incident. We also note that although the affidavit states
Garner gave approximately one ounce of marijuana to the informant, it does not state that the
informant turned the marijuana over to the officers or that the officers even observed the marijuana
after it was allegedly purchased. Thus, one can only assume the affaint gained this knowledge based
strictly upon the informant’s telling him about the alleged purchase. Additionally, nothing states
whether the exchanges took place outside or inside the home. With this in mind, we note that there
is essentially no direct assurance in the officer’s affidavit even whether Garner was the only
individual at the residence wherein the exchanges are said to have taken place. In short, numerous
assumptions are necessary if the magistrate was to rely exclusively on information directly observed
by the authorities.
Moreover, the affidavit contains the officer’s basis for “believ[ing] the information he
received from th[e] informant/citizen.” By reasonable inference it appears that the affiant has
acknowledged the confidential informant’s having provided at least some of the information set out
in the affidavit. Unfortunately the language used in the affidavit transforms into a guessing game
discernment of what details the informant provided.
We, thus, next address the matter of the confidential informant’s veracity. Case law warns
against a hyper-technical application of the Aguilar-Spinelli test, and this Court has previously
provided that “[t]he requisite volume or detail of information needed to establish the informant’s
credibility is not particularly great.” State v. Lowe, 949 S.W.2d 302, 305 (Tenn. Crim. App. 1996).
However, precedent also provides that “the affiant must provide some concrete reason why the
magistrate should believe the informant.” Id. As above-noted, the affidavit in the instant case states
that “[a]ll information received from this source has all proven to be true through past drug
-5-
investigations.” Though a portion of this sentence indicates the nature of the information previously
provided, the remaining portion is certainly conclusory. The statement that the information has
proven to be true lacks independent indicia of its validity. For example, we do not know the number
of times that the informant has provided reliable information. See State v. Stephen Udzinski, Jr., No.
01C01-9212-CC-00380, 1993 WL 473308, at *4 (Tenn. Crim. App. at Nashville, Nov. 18, 1993).
Neither does the affidavit state whether the information previously given has resulted in convictions.3
See, e.g., Lowe, 949 S.W.2d at 305. Based upon the lack of supportive “concrete reason[s]” such as
these, we are forced to conclude that the affidavit fails to support the confidential informant’s
credibility. See also State v. Darrell Lee Emerson, No. 02C01-9312-CC-00276, 1998 WL 106225,
at *6 (Tenn. Crim. App. at Jackson, Mar. 12, 1998).
We are, therefore, left to consider whether observations by the police sufficiently confirm the
confidential informant’s veracity. In State v. Billy Jerome McMillin, No. 03C01-9110-CR-00322,
1992 WL 227537 (Tenn. Crim. App. at Knoxville, Sept. 18, 1992), this Court faced a somewhat
similar situation involving the need for “independent police investigation” corroboration of the
Aguilar-Spinelli veracity prong. Id. at *1. The McMillin affidavit contained the following relevant
language: “I [the affiant] set up surveillance on the apartment described above and have observed
several individuals go to the apartment who are known by me to be drug users. These individuals
stay for a short period of time lasting no longer than 15 minutes and leave.” Id. Additionally, the
affidavit stated that the informant, familiar with the packaging and appearance of marijuana, had
seen this substance in the defendant’s apartment within forty-eight hours of the officer’s seeking the
warrant. Id. Specifically noting that the case was a close one, this Court upheld the validity of the
warrant. Id. at *2.
As noted above, the affidavit presently before this Court states that Officer Blankenship had
been involved in a three-week investigation of marijuana distribution and had observed Garner
purportedly going to the defendant’s address in order to purchase marijuana. However, the affidavit
is not clear regarding the extent to which the three-week investigation focused on Garner, nor does
it state the number of times that Garner allegedly went to the defendant’s residence to obtain
marijuana. The statement “[d]uring the course of this investigation affiant has surveilled a subject
known as Trevor Garner to the above address to purchase quantities of marijuana” is quite vague.
Moreover, the language contained in the affidavit only specifically details one instance factually
indicative of drugs potentially being present in the defendant’s residence. This statement relates to
Garner’s leaving his residence during a drug transaction to go to and from the defendant’s residence
before completing the sale by allegedly delivering the marijuana. Since these constitute the only
observations directly related to the location searched, we believe that more corresponding detail,
certainly known or easily recorded at some point by the authorities, was needed in this case. Had
the officer detailed that he had observed Garner going immediately to and from the defendant’s
residence in the middle of several drug transactions, remaining at the defendant’s for only a short
period of time, and upon his return therefrom delivering marijuana to the confidential subjects, the
3
W hile we do not assert that proof of prior convictions resulting from information supplied is required to
establish an informant’s veracity, we note that precedent distinguishes information leading to arrests from information
leading to conviction s. See Lowe, 949 S.W .2d at 305. In doing so, this Court has observed that arrests are “not
necessarily indicative of reliability” while “convictions support[] the conclusion that the information was correct and
therefo re reliab le.” Id.
-6-
support for the warrant’s validity would be considerably stronger.4 See Billy Jerome McMillin, 1992
WL 227537, at *1-*2; cf. Henning, 975 S.W.2d at 295 (noting evidence of several drug transactions
though conclusion that these were drug transactions is not specifically based on duration of visits).
Beyond the lack of proof for the veracity prong of Aguilar-Spinelli, this affidavit also raises
concerns regarding the confidential informant’s basis of knowledge. Expanding upon the principle
that the affidavit must afford the magistrate sufficient facts to determine whether a basis exists for
the informant’s allegations regarding criminal conduct, this Court has stated that “the affidavit must
describe the manner in which the informant gathered the information, or the affidavit must describe
the criminal activity of the suspects with detail.” State v. Jimmy Clyde Jones, No. 02C01-9703-CC-
00120, 1997 WL 777077, at *3 (Tenn. Crim. App. at Jackson, Dec. 18, 1997); see also State v. Vela,
645 S.W.2d 765, 767 (Tenn. Crim. App. 1982). In part because of some of the factual omissions
previously cited, it seems that the only detailed support for the affidavit’s claim “that Trevor Garner
obtains marijuana from an individual by the name of Kandy who resides in a mobile home on Forest
Hill Road” is the assertion that on a single occasion Garner left the confidential informant in the
middle of a drug transaction, went immediately to the defendant’s residence, stayed there briefly, and
returned without stopping elsewhere to the confidential informant to complete the sale of
approximately one ounce of marijuana. While this behavior may be curious, it does not rise to the
level of establishing a basis of knowledge to support a probable cause finding to search not Garner’s
but the defendant’s residence.5
In short, we recognize our obligation to engage in “commonsense” rather than “hyper-
technical” evaluations of these matters and to afford the magistrate’s findings “great deference,”
Jacumin, 778 S.W.2d at 435-36; State v. Bryan, 769 S.W.2d 208, 211 (Tenn. 1989); State v. Evelyn
C. Bostic, No. M2000-03011-CCA-R3-CD, 2002 WL 369898, at*2 (Tenn. Crim. App. at Nashville,
Mar. 8, 2002). However, our review leads us to the conclusion that the affidavit presented in this
case contains too many conclusory statements and too few connective concrete facts. For these
reasons, we conclude that the record does not support a probable cause finding. Thus, we find that
this issue has merit and that the evidence obtained in the search in this case should have been
suppressed.
4
W e acknowledge that the informant in the instant case, unlike informants in Henning and McM illin, apparently
did deliver the sought after drug to the affiant. See Henning, 975 S.W .2d at 295 ; Billy Jerome McM illin, 19 92 W L
227537, at *1. However, in Henning and McM illin the affidavits allege that the informants saw the drug in the place to
be searched. See Henning, 975 S.W .2d at 295 ; Billy Jerome M cM illin, 1992 W L 227 537, at *1. Such is not the case
here.
5
W e do not mean to suggest that a single controlled drug buy can never furnish the basis of probable cause for
a search warrant. However, because of the gaps in the affaint’s stated observations, i.e. no reference to seeing marijuana
or overhearing conversation referring to marijuana during this single alleged purchase, the description of the single
purchase in this case lacks the detail sufficient to establish probable cause for a search.
-7-
Sufficiency6
The defendant next argues that the proof is insufficient to support his E felony conviction for
possession of marijuana with intent to sell or deliver. While he concedes that the evidence supports
a conviction for the lesser-included offense of simple possession, he asserts that the State failed to
show that the marijuana involved was intended for other than his personal use.
When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all
conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence in evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. While the trier of fact must be
able to “determine from the proof that all other reasonable theories except that of guilt are excluded,”
case law provides that “a criminal offense may be established exclusively by circumstantial
evidence.” State v. Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); see also, e.g., State v.
Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987).
Turning to the language of the statute relevant to the challenged conviction, Tennessee Code
Annotated section 39-17-417, in pertinent part, provides that “[i]t is an offense for a defendant to
knowingly . . . [p]ossess a controlled substance with intent to manufacture, deliver or sell such
controlled substance.” Tenn. Code Ann. § 39-17-417(a)(4). Our code also states that “[i]t may be
inferred from the amount of a controlled substance or substances possessed by an offender, along
with other relevant facts surrounding the arrest, that the controlled substance or substances were
possessed with the purpose of selling or otherwise dispensing.” Id. § 39-17-419. Items such as scales,
baggies, and weapons in the vicinity of narcotics and/or a defendant have been among those objects
found appropriate for consideration in these circumstances. See, e.g., State v. Charles E. Kilpatrick,
Jr., No. 01C01-9810-CR-00410, 2000 WL 19762, at *4 (Tenn. Crim. App. at Nashville, Jan. 13,
2000); State v. William Dorris Bucy, II, No. 02C01-9709-CC-00363, 1998 WL 855463, at *8 (Tenn.
Crim. App. at Jackson, Dec. 10, 1998); State v. Timothy Rathers, No. 02C01-9701-CR-00392, 1998
WL 605095, at *3 (Tenn. Crim. App. at Jackson, Sept. 14, 1998); State v. Althea Myers, No. 01C01-
6
W e address this issue based upon the proof submitted at trial. Obviously the resolution of the above-discussed
suppression issue will impact the sufficiency of the proof to support any future conviction in this case.
-8-
9510-CR-00355, 1997 WL 424435, at *1 (Tenn. Crim. App. at Nashville, July 30, 1997); State v.
Willie J. Houston, No. 02C01-9604-CR-00135, 1997 WL 272446, at *2 (Tenn. Crim. App. at
Jackson, May 23, 1997).
As noted above, the defendant concedes that the State has proven that he was knowingly in
possession of marijuana; however, he contests the sufficiency of the proof of the element regarding
his intention to sell or deliver this substance. A review of the record reveals that the authorities
involved found, among other items, the following in the master bedroom of the defendant’s
residence: a 380 pistol; various knives; hand scales; marijuana packaged in separate sandwich bags;
a box of Glad sandwich bags; and a clear plastic bag containing six hundred seventy dollars.
Additionally, the investigating officer testified concerning his specialized training and experience
in the area of drug enforcement and then offered his opinion that the Arctic Zone cooler containing
the hand scales and individually packaged marijuana represented a “normal thing for a dealer.” We
also observe that this cooler was not only found in the same bedroom with the aforementioned box
of Glad sandwich bags, but both were actually located under the bed. Furthermore, we again note
that the total of marijuana recovered from the home weighed 198.3 grams. The combination of these
facts viewed in the light most favorable to the State sufficiently supports a determination by the trier
of fact that the defendant intended to sell or deliver marijuana.7 This issue, thus, lacks merit.
Conclusion
As previously stated, we find that the defendant’s suppression issue merits relief.
Accordingly, we REVERSE the defendant’s convictions and REMAND the matters for further
proceedings consistent with this opinion.
___________________________________
JERRY L. SMITH, JUDGE
7
W hile the record also certainly contains evidence of drug usage which may be relevant to the resolution of
this type of claim, such evidence does not preclude the possibility of a valid conviction for the intended sale or delivery
of narco tics. See, e.g., State v. Antwain Laman Spears, No. 02C01-970 5-CC-0017 0, 1998 W L 3821 86, at *6 (Tenn.
Crim. App. at Jackson, July 1, 1998).
-9-