State of Tennessee v. Jerry Lewis Tuttle

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 5, 2016 Session
STATE OF TENNESSEE v. JERRY LEWIS TUTTLE
Appeal by Permission from the Court of Criminal Appeals
Circuit Court for Maury County
Nos. 21695, 22091 Stella L. Hargrove, Judge
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No. M2014-00566-SC-R11-CD – Filed April 5, 2017
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We granted the State‟s appeal primarily to determine whether the intermediate appellate
court erred in finding the search warrant affidavit insufficient to establish probable cause,
and in doing so, to revisit the continuing vitality of State v. Jacumin, 778 S.W.2d 430
(Tenn. 1989). In Jacumin, this Court refused to follow Illinois v. Gates, 462 U.S. 213
(1983), which adopted a totality-of-the-circumstances analysis for determining whether
an affidavit establishes probable cause for a search warrant, and instead embraced, as a
matter of Tennessee constitutional law, another test derived from two earlier United
States Supreme Court decisions, Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v.
United States, 393 U.S. 410 (1969). For the reasons explained herein, we overrule
Jacumin and adopt the totality-of-the-circumstances analysis for determining whether an
affidavit establishes probable cause for issuance of a warrant under article I, section 7 of
the Tennessee Constitution. Applying this standard, we reverse the Court of Criminal
Appeals‟ decision holding the search warrant invalid. We also reverse the intermediate
appellate court‟s conclusion that the evidence was insufficient to support the defendant‟s
convictions for conspiracy to possess over 300 pounds of marijuana with intent to sell or
deliver and conspiracy to commit money laundering and reinstate the trial court‟s
judgment approving the jury‟s verdict. Finally, we affirm, on separate grounds, the Court
of Criminal Appeals‟ decision upholding the trial court‟s judgment ordering forfeiture of
the $1,098,050 cash seized when the search warrant was executed.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the
Court of Criminal Appeals Affirmed in Part, Reversed in Part;
Judgment of the Trial Court Reinstated
CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS,
C.J., and SHARON G. LEE and HOLLY KIRBY, JJ., joined. ROGER A. PAGE, J., Not
Participating.
Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; Andrew Craig Coulam, Assistant Attorney General; Brent Cooper, Assistant
District Attorney General; T. Michel Bottoms, District Attorney General, for the
appellant, State of Tennessee.
John S. Colley III (at trial and on appeal) and Kevin S. Latta (at trial), Columbia,
Tennessee, for the appellee, Jerry Lewis Tuttle.
OPINION
I. Factual and Procedural Overview
In 2012, the Maury County Grand Jury returned two separate indictments charging
the defendant, Jerry Lewis Tuttle, with multiple offenses in connection with a drug
trafficking conspiracy. The indictments were issued after officers executed a search
warrant on April 24, 2012, for property located at 4571 Dugger Road, Culleoka,
Tennessee, in Maury County (“4571 Dugger Road property”).1 The property consisted of
“5.77 acres,” and the defendant resided in a mobile home on the property with his wife,
Tammy A. Tuttle, who was the record owner of the property.2 The warrant authorized
officers to search the defendant‟s “single wide mobile home gray in color with an
attached wood constructed covered front po[]rch” and “all outbuildings, outhouses and
storage buildings, and all vehicles found thereon.” Officers were authorized to seize
“[m]arijuana, all equipment, devices, records, computers and computer storage discs . . .
used for the purpose of producing, packaging, dispensing, delivering or obtaining
1
The defendant‟s wife and adult son were also charged with criminal offenses after the search of
the 4571 Dugger Road property and other locations, but this appeal involves only the defendant.
2
The State has not challenged the defendant‟s standing to contest the search on the ground that
he was not listed as the record owner of the 4571 Dugger Road property, nor has the defendant contested
his connection to the property.
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controlled substances, or recording transactions involving controlled substances, [and]
any indicia of ownership, dominion, or control over the premises to be searched . . . .”
When the warrant was executed, officers found, inside the residence, eight pounds
of marijuana, almost a half an ounce of cocaine, and between $95,000 and $98,000 cash,
in $100 and $50 bills, as well as multiple guns, a large scale capable of weighing items
up to thirteen pounds, a small scale capable of weighing items up to two pounds, a money
counter, a device used to grind marijuana into a powder, and a pipe and other items
associated with smoking marijuana. Just outside the residence in the trunk of the
defendant‟s Honda Civic, officers located a number of additional guns and an
ammunition can containing $1,000,300 cash, all in $100 bills that were issued prior to the
year 2000. Officers also located marijuana plants growing in an Igloo cooler and various
items of personal property, including vehicles and farming equipment, believed to be
derived from the defendant‟s involvement in drug trafficking.
The defendant moved pre-trial to suppress the evidence seized during the search,
arguing that the affidavit supporting the search warrant failed to establish probable cause
and contained false information. The defendant also moved to dismiss the forfeiture
count of the indictment, arguing that the forfeiture was barred by the five-year statute of
limitations and by the State‟s failure to comply with the forfeiture statute. After a hearing
on March 19, 2013, the trial court denied the motions.
The case proceeded to trial, and the jury found the defendant guilty of the
following six offenses: (1) simple possession of cocaine in an amount of over .5 grams;
(2) possession of marijuana in an amount of not less than one-half ounce nor more than
ten pounds with intent to sell; (3) conspiracy to possess over 300 pounds of marijuana
with intent to sell or deliver; (4) conspiracy to commit money laundering; (5) money
laundering; and (6) unlawful possession of a firearm with intent to go armed during the
commission of or attempt to commit a dangerous felony.3 The day after the jury
rendered its verdict, the trial court held a hearing on the forfeiture count of the
3
After a separate sentencing hearing, the trial court imposed an effective fifty-year sentence, with
a release eligibility of thirty-five percent. Neither party has raised any issue related to sentencing in this
appeal.
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indictment, Tenn. Code Ann. § 39-11-708(d) (2010), and ordered forfeiture of the cash
and other personal property found during the search.4
The defendant appealed, challenging the trial court‟s ruling on his motion to
suppress, the sufficiency of the evidence to support his conspiracy convictions, and the
trial court‟s decision ordering forfeiture of the cash. A majority of the Court of Criminal
Appeals reversed the trial court‟s ruling on the defendant‟s motion to suppress and
vacated the defendant‟s conspiracy convictions for insufficient evidence but affirmed the
trial court‟s decision ordering forfeiture of the cash.5 We granted the State‟s application
for permission to appeal.
Because the issues before us involve facts presented in the affidavit and evidence
introduced at separate hearings, we will separately summarize the facts and analyze the
law related to each of the following issues: (1) whether the search warrant affidavit
sufficiently established probable cause for issuance of the warrant; (2) whether the
evidence presented at trial was sufficient to support the defendant‟s conspiracy
convictions; and (3) whether, given the proof offered at trial and at the post-trial
forfeiture hearing, the courts below properly ordered forfeiture of the cash seized on the
4571 Dugger Road property.
II. Search Warrant Affidavit
A. Facts Recited in the Search Warrant Affidavit
Trooper Shawn Boyd, a Tennessee Highway Patrol (“THP”) officer, prepared the
April 23, 2012 affidavit that resulted in the issuance of the April 24, 2012 search warrant
allowing officers to search the 4571 Dugger Road property.6 When he prepared the
4
Only the forfeiture of the cash is at issue in this appeal.
5
Judge Roger A. Page, who now serves as a member of this Court, dissented from the majority‟s
decision to reverse the trial court‟s ruling on the motion to suppress and to reverse the defendant‟s
convictions but concurred with the majority‟s forfeiture decision.
6
Trooper Boyd used this affidavit to obtain search warrants for other properties as well, but this
appeal involves only the search of the property at 4571 Dugger Road.
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affidavit, Trooper Boyd had worked as a THP officer for ten years and had been assigned
to the Nashville Drug Enforcement Agency Task Force (“Nashville DEA”) for two years.
The investigation culminating in the request for this warrant began after another
THP officer stopped a motorist, Adrian Davis, on March 2, 2012, for a routine traffic
violation. When a consensual search of Mr. Davis‟s vehicle yielded a small amount of
marijuana and Lortab pills, Mr. Davis offered to provide law enforcement with
information concerning a marijuana trafficking organization. The THP officer issued Mr.
Davis a citation for possession of drugs, released him, and gave him Trooper Boyd‟s
telephone number. Mr. Davis called Trooper Boyd the next day, and two days after that,
March 5, 2012, Trooper Boyd interviewed Mr. Davis.
During this interview, Mr. Davis admitted to Trooper Boyd that he had previously
received marijuana from an Atlanta, Georgia based marijuana distribution organization
operated by a Hispanic man named Martinez. Mr. Davis stated that the defendant‟s son,
Christopher Tuttle (“Son”), known to Mr. Davis as “Red,” received large quantities of
marijuana—approximately 600 to 700 pounds—from this same drug trafficking
organization (“DTO”) on a weekly basis. When shown the photograph from Son‟s
driver‟s license, Mr. Davis identified Son, stated that he had seen Son picking up
marijuana from couriers of the DTO about a year earlier, stated that Son drove a white
Nissan truck and lived in South Nashville (although Mr. Davis did not know the exact
location), and, relevant to the case, stated that Son‟s “whole family [was] involved with
selling drugs.” Mr. Davis also provided Trooper Boyd with his own telephone number
and with two addresses at which he resided.
Using this information, Nashville DEA learned that Mr. Davis‟s telephone number
was connected to ongoing DEA investigations in Atlanta, Georgia, and Birmingham,
Alabama, into marijuana distribution organizations. Atlanta DEA already had a wiretap
on Mr. Davis‟s phone number, and, on January 14 and 15, 2012, intercepted Mr. Davis
“discussing multi[-]hundred pound marijuana deals” with the target of its investigation.
Birmingham DEA had tracked a suspected drug dealer, Cleto Medina, the target of its
investigation, to one of the addresses Mr. Davis gave Trooper Boyd as his residence and
had information, via wiretap, that another suspect, known as “The Red,” was “believed to
be receiving large shipments of marijuana in Tennessee.” Birmingham DEA had
received this information from Austin, Texas DEA, which was conducting a wiretap as
part of an investigation it was conducting of a marijuana trafficking organization based in
Texas.
In March 2012, Austin DEA informed Nashville DEA of its investigation of the
Mario Martinez Calderon DTO, which was receiving, transporting, and distributing
kilograms of cocaine, methamphetamine, and marijuana from Austin, Texas to
Birmingham, Alabama. Austin DEA advised that Mr. Medina had been identified as the
person in Birmingham to whom the Martinez-Calderon DTO supplied drugs.
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Furthermore, Austin DEA advised that, on March 6, 2012, one of its confidential
informants made a controlled call to Mr. Medina and learned that he had a Tennessee
customer known as “El Rojo,” which translates to “The Red.” Mr. Medina and the
confidential informant discussed the price of cocaine and possible future deals with “El
Rojo” and another Tennessee customer involving multiple kilograms of cocaine. Mr.
Medina stated that “he ha[d] known „El Rojo‟ for a while and that „El Rojo‟ is very
careful.”
On March 16, 2012, Birmingham DEA advised Nashville DEA that Mr. Medina
had received a shipment of drugs in Birmingham and that Mr. Medina‟s brother and co-
conspirator, Biato Jaramillo, would be transporting drugs to a customer in Tennessee that
day. At approximately 5:30 a.m. that day, Birmingham DEA advised Nashville DEA that
their agents were following a maroon Ford Expedition with an Alabama license tag north
on Interstate 65 toward Tennessee and that the Expedition was transporting a large
amount of narcotics. Nashville DEA responded by sending officers to conduct
surveillance of the vehicle once it crossed into Tennessee. Birmingham DEA agents
followed the vehicle until it crossed into Tennessee at approximately 7:56 a.m., at which
point Nashville DEA began following the vehicle as it continued north on Interstate 65.
At approximately 8:26 a.m., officers observed the Expedition take exit 37 onto Tennessee
State Highway 50 and stop at a Shell gas station near the exit. The Expedition pulled
next to a gas pump, and the driver went into the store, returned to the vehicle, drove the
vehicle to a parking space, and stopped.
About thirty minutes later, at approximately 8:58 a.m., an officer observed a white
Nissan Titan truck, later identified as belonging to Son, arrive at the gas station, pull next
to the gas pumps, and then leave the gas station, followed by the maroon Expedition.
Officers followed the vehicles as they traveled west on Highway 50 and then turned onto
Highway 373 at about 9:09 a.m. However, when the vehicles turned onto Mooresville
Pike a short time later, officers were unable to maintain surveillance in the rural area
without risking discovery, so “contact with the vehicles was lost for a period of time.”
During this time, officers learned from searching a computer database containing real
estate records that Son possibly had family in the area, because Tammy A. Tuttle was
listed as the record owner of property located nearby at 4571 Dugger Road, Culleoka,
Tennessee.
Trooper Boyd and another officer then drove past the 4571 Dugger Road property
and observed Son‟s white Nissan Titan truck parked in the driveway behind the
defendant‟s mobile home. A short time later, officers observed Son‟s vehicle pull onto
Highway 373, drive to Highway 50, and then pull onto Interstate 65, heading north
toward Nashville.
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Based on the foregoing, Trooper Boyd expressed his belief “that during this
meeting [on March 16, 2012] BIATO JARAMILLO transferred drugs to [Son]” at the
4571 Dugger Road property. Trooper Boyd acknowledged that officers had no
information implicating Tammy A. Tuttle in Son‟s drug trafficking activities, but, as
Trooper Boyd recited in the affidavit, officers were aware that Son‟s father had
previously resided on the property and that Son had previously hidden proceeds of an
earlier drug trafficking scheme on the 4571 Dugger Road property. In particular, Trooper
Boyd explained that, on December 14, 2000, a Davidson County Grand Jury had charged
Son and other co-conspirators in a multi-count indictment for their involvement in a
marijuana distribution organization Son operated. The charges stemmed from separate
February 2000 traffic stops of Son and his wife, which resulted in the seizure of over
$60,000 cash derived from drug proceeds, a July 2000 seizure of 2,600 pounds of
marijuana from a rental truck that another co-conspirator intended to deliver to Son, an
August 2000 seizure of 2,200 pounds of marijuana from a vehicle in Son‟s possession,
and $25,000 cash Son had retrieved from another co-conspirator‟s residence to pay the
driver of the loaded vehicle. As part of this investigation, a search warrant was executed
on August 11, 2000, at the 4571 Dugger Road property, and officers “located a metal
ammo can, which contained a plastic bag with $112,000[] in U.S. currency. The plastic
bag had „$200,000‟ and the initials „CT‟ written on it.”7 Investigators suspected that the
cash constituted Son‟s proceeds from drug trafficking activities, which Son had hidden at
his father‟s residence.
Trooper Boyd recounted that, on the morning of April 2, 2012, Birmingham DEA
observed suitcases being offloaded from a bus and loaded into Mr. Medina‟s white
Lincoln Navigator in Birmingham. Around noon that same day, Birmingham DEA
informed Trooper Boyd of a call it had intercepted between Mr. Medina and Son, during
which Mr. Medina asked if Son was ready, and Son answered in the affirmative. Mr.
Medina told Son he would leave at 1:30 p.m. and would arrive around 4:30 p.m. Son
agreed to this time and told Mr. Medina to call when he was near the state line. Mr.
Medina and Son discussed “luggage,” with Mr. Medina saying it was just one big
luggage and the amount was 170. Referring to what Trooper Boyd believed was money
to pay for the drugs, Son told Mr. Medina that he did not have all of it but was very close
7
As a result of the 2000 search, the defendant was also charged with criminal offenses, and pled
guilty on April 9, 2002, to conspiracy to sell over seventy pounds of marijuana and to one count of money
laundering as the result of his assistance in the concealment of Son‟s drug proceeds. He received an
eight-year sentence for each offense.
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and was going to another location to find out if he could get all of it. Based on his
training and experience, Trooper Boyd believed that “luggage” referred to marijuana and
“170” referred to the cost of the marijuana as $170,000. Trooper Boyd interpreted the
coded language in the phone call as Son and Mr. Medina “making plans in order to
conduct a marijuana transaction.”
At 3:30 p.m. that same day, April 2, 2012, Birmingham DEA contacted Trooper
Boyd and advised that, during an intercepted call, Son had instructed Mr. Medina to take
exit 32 off Interstate 65, turn left, and proceed to a Texaco gas station. Mr. Medina had
repeated the instructions and agreed to call Son when he exited the Interstate. Acting on
this information, Nashville DEA established surveillance of Highway 373, known as the
Culleoka Highway, at exit 32 in the direction Son told Mr. Medina to travel. Officers
also set up surveillance at a market located at 2345 Culleoka Highway. At approximately
4:00 p.m., officers observed the white Navigator leave Interstate 65 at exit 32 and
proceed west on Highway 373, as Son had instructed. At approximately 4:07 p.m.,
another officer observed Son arrive at a nearby gas station in his white Nissan Titan truck
and pull next to the gas pumps. Shortly after Son arrived, the Navigator, driven by a
Hispanic male wearing blue jeans, a striped shirt, and a ball cap, stopped next to the gas
pumps. Officers observed the Hispanic man and Son leave their vehicles and walk
towards the front of the market. Both men soon returned to their vehicles and departed
the gas station, with the Navigator following the Son‟s vehicle as it turned onto
Mooresville Pike in the direction of Dugger Road. Because of the rural location, officers
were again unable to follow the vehicles after they turned without risking discovery.
However, at 4:20 p.m., Birmingham DEA Special Agent Shawn Steven advised
Officer Boyd that Birmingham DEA had received “a cell phone GPS [global positioning
system] location of [Mr. Medina‟s] phone and [that] it placed [Mr. Medina] on Dugger
Road in Culleoka.” In his affidavit, Trooper Boyd stated that Son “was found at this
same location during the surveillance that took place on March 16, 2012.”
The next day, April 3, 2012, a federal magistrate judge authorized the GPS
tracking of Son‟s telephone number, and GPS tracking that same day placed Son on
Remuda Circle in Smyrna, Tennessee. Trooper Boyd traveled to Remuda Circle and
observed Son‟s white Nissan Titan truck in the driveway.
On April 4, 2012, Trooper Boyd returned to Remuda Circle at approximately
12:46 p.m., because GPS had placed Son‟s telephone there, but the white Nissan Titan
truck was not at the residence. At approximately 1:30 p.m., Trooper Boyd observed the
vehicle pull into the driveway and saw a white female exit the vehicle and enter the
residence via the garage. Ten minutes later, Trooper Boyd saw the white female and Son
exit the residence and enter the vehicle, with the female driving and Son in the passenger
seat. About two hours later, the vehicle returned to Remuda Circle and backed into the
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garage. Trooper Boyd observed Son exit from the driver‟s side and a teenage male exit
from the passenger side. Both entered the residence via the garage.
The next day, April 5, 2012, Trooper Boyd obtained an order from a Tennessee
trial judge to intercept and monitor calls to a phone number Son used. On April 11, 2012,
Trooper Boyd intercepted a call between Mr. Medina and Son, in which Son indicated
that the “wood” was “157” instead of “170.” Mr. Medina assured Son that he and his
boss would give Son credit for the difference, and Son indicated that he should receive
credit for the difference between 157 and “170,” as well as “three” from another time.
Based on his experience and training, Trooper Boyd interpreted “wood” as
referring to “marijuana” and believed that Son was telling Mr. Medina he had paid for
170 pounds of marijuana but had received only 157 pounds and that Mr. Medina‟s
response was assuring Son that he and his boss would credit Son for the shortages on the
next delivery. Trooper Boyd stated that during this conversation with Mr. Medina—and
thirty minutes before and after it—GPS tracking had placed Son‟s phone on Remuda
Circle in Smyrna. Trooper Boyd believed that, when this conversation occurred, Son had
“just finished weighing the marijuana received from the delivery on April 2, 2012.”
Based on the above facts, Trooper Boyd stated in his affidavit his conclusion that
Son was “utilizing 4571 Dugger Road, Culleoka, Tennessee to further his drug trafficking
activities.” Trooper Boyd based this conclusion “specifically on intercepted calls and
surveillance of [Son] that establish that [Son] utilized 4571 Dugger Road, Culleoka,
Tennessee on March 16, 2012 and April 2, 2012 to receive shipments of marijuana in
excess of 100 pounds from BIATO JARAMILLO AND CLETO MEDINA.” In
paragraph eighteen of the fifty-two-paragraph affidavit, Trooper Boyd stated: “As further
described below [Son] used this residence on March 16, 2012 and April 2, 2012 to off
load shipments of marijuana in excess of 100 pounds.” However, nowhere in the
affidavit did Trooper Boyd state that he, or any other law enforcement officer, had
actually witnessed the offloading of drugs or Son receiving drugs at the 4571 Dugger
Road property.
Trooper Boyd also based his conclusion that evidence of drug trafficking would be
found on the 4571 Dugger Road property on his own experience and training, gained
from executing numerous search warrants in drug trafficking investigations and attending
numerous training workshops and seminars, taught by both the DEA and private
organizations. From this experience and training, Trooper Boyd had learned several
“habits, characteristics, and practices of drug traffickers,” including, among others, the
following:
a. Drug traffickers very often place their assets derived from their
criminal activities in names of other persons or corporate entities other than
their own names, or they will use false names and identities in order to
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avoid detection of these assets by law enforcement agencies so as to avoid
forfeiture of the same.
b. Drug dealers actually own and continue to use such assets derived
from criminal activities and exercise dominion and control over this
property, though it may be titled or recorded in the names of others.
c. Drug dealers who purchase larger amounts of controlled substances
must maintain and have access to large amounts of cash in order to
maintain and finance their on-going narcotics business.
....
e. Drug dealers very often will hide contraband, proceeds of drug sales
and records of drug transactions in secure location[s] such as their own
residences, locations which they control but which are titled in the names of
others, residences of others who are participants in or aiders and abettors of
the drug conspiracy, their businesses, and bank safe deposit boxes to
conceal them from law enforcement officials.
....
B. Suppression Hearing
At the pretrial suppression hearing, the defendant argued that the affidavit failed to
establish probable cause because it lacked sufficient facts to establish a nexus between
the drugs and the defendantʼs residence on the 4571 Dugger Road property. The
defendant insisted that the allegations of the affidavit actually indicated that the drugs
were located at Son‟s Smyrna Remuda Circle residence. Furthermore, the defendant
alleged that the facts aimed at establishing a nexus between the drugs and his residence
on the 4571 Dugger Road property were stale, consisting only of the defendant‟s ten-
year-old charges and convictions (including the search of the property preceding them)
and Trooper Boyd‟s statement that, on two prior occasions, the most recent being three
weeks before officers applied for the warrant, Son had allegedly used the property to
receive shipments of drugs from agents of the DTO.
In addition to challenging the facial sufficiency of the affidavit, the defendant
attempted to impeach the affidavit by arguing that paragraphs eighteen and thirty-seven
of the affidavit contained false information. In particular, the defendant claimed that
paragraph eighteen falsely implied that Trooper Boyd, or another officer, had witnessed
the offloading of marijuana in excess of 100 pounds at the defendant‟s “residence” on
March 16 and April 2. The defendant pointed to the following statement in paragraph
eighteen as supporting this claim: “As further described below [Son] used this residence
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on March 16, 2012 and April 2, 2012 to off load shipments of marijuana in excess of 100
pounds.” (Emphasis added.) The defendant also attacked the following portion of
paragraph thirty-seven as false:
At approximately 4:20 p.m. [Birmingham DEA Special Agent Shawn
Steven] advised me [Trooper Boyd] that they received a cell phone GPS
location of [Mr. Medina‟s] phone and it placed him on Dugger Road in
Culleoka, Tennessee. [Special Agent] Steven was able to provide the
numeric for that GPS query, they are as follows: 35.47379, -87.02369, the
GPS location placed [Mr. Medina] on Dugger Road at 4:24 p.m. on April 2,
2012. As described earlier in this affidavit [Son] was found at this same
location during the surveillance that took place on March 16, 2012. Also as
described earlier in this affidavit the 20th Judicial Drug Task Force
executed a search warrant at 4571 Dugger Road, Culleoka, TN in
connection with their investigation in 2000. During the search $112,000.00
in cash was seized from the residence which at the time belonged to [Son‟s]
father.
According to the defendant, this statement falsely implied that the GPS coordinates
placed Mr. Medina in the driveway of the defendant‟s mobile home, which was the
“location” at which Son‟s vehicle was seen parked on March 16, 2012.
To substantiate his assertion that paragraph thirty-seven contained false
information, the defendant called Ben Sellers to testify at the suppression hearing. Mr.
Sellers owned C.T.S., a company specializing in providing equipment to business clients
which allows them to track the GPS whereabouts of their vehicles. Mr. Sellers said his
company‟s equipment is accurate to within five meters. Using his company‟s equipment
and his cell phone, Mr. Sellers visited the GPS coordinates listed in paragraph thirty-
seven of the affidavit. He testified that these coordinates referred to a specific point on
an unmarked dirt road, approximately 120 to 140 yards from the defendant‟s residence on
the 4571 Dugger Road property but only fifty feet from a neighbor‟s house located at
4585 Dugger Road. Mr. Sellers acknowledged, however, that the property to which the
GPS coordinates referred was included in the nearly six-acre tract constituting the 4571
Dugger Road property, for which the search warrant was issued.
Nevertheless, Mr. Sellers stated that the driveway of the defendant‟s residence,
where officers saw Son‟s truck parked on March 16th, would have different GPS
coordinates than those listed in paragraph thirty-seven. But, Mr. Sellers conceded that,
when the GPS coordinates listed in paragraph thirty-seven were typed into Google Maps,
an internet service, Google Maps returned the location of the coordinates as 4571 Dugger
Road, the address associated with the defendant‟s residence and the property for which
the search warrant was issued.
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Trooper Boyd also testified at the suppression hearing. He clarified that, while he
had stated in paragraph thirty-seven that the GPS coordinates “placed [Mr. Medina] on
Dugger Road . . . [and as] described earlier in this affidavit[,] [Son] was found at this
same location . . . on March 16, 2012,” he had not meant “that it was at the exact same
location that [Son‟s] truck was parked . . . . It was in the same area there, . . . [the] same
location that he was seen at on March 16th.” Trooper Boyd acknowledged that the
wording of the paragraph could have been more precise, could have specified that law
enforcement officers had observed Son‟s truck parked in the driveway of the defendant‟s
residence only after the suspected drug transfer had occurred, and could have provided a
fuller explanation of the GPS coordinates. Trooper Boyd explained that he had failed to
be more precise because he was “just tired.” Trooper Boyd reiterated that Google had
returned the location of the GPS coordinates listed in paragraph thirty-seven as 4571
Dugger Road.
Trooper Boyd confirmed that neither he nor any other agent witnessed a drug
transaction or transfer at the 4571 Dugger Road property. He described his use of the
word “residenceˮ in paragraph eighteen as “probably miswording, more than anything”
and emphasized that the statement reflected his belief, based on the available evidence,
not his first hand observation, that Son was using the property to transfer drugs. He
agreed that he should have used the more general word “property” instead of “residence.”
Nevertheless, Trooper Boyd maintained that he had neither intentionally included false
information in the affidavit nor attempted to mislead the judge into issuing the warrant.
DEA Special Agent Shawn Steven also testified at the suppression hearing. He
explained that, after learning from Trooper Boyd that officers were not able to maintain
surveillance on Son and Mr. Medina for fear of being discovered, he had asked Sprint,
pursuant to a warrant, to ping Mr. Medina‟s cell phone. Upon his request, Sprint sent a
signal—a ping—to Mr. Medina‟s cell phone, which returned the latitude and longitude
coordinates of the phone‟s location at the moment it was pinged. DEA Special Agent
Steven explained that the accuracy of pinged locations varies from five meters to 1,000
meters. Sprint informed Special Agent Steven that the pinged location of Mr. Medina‟s
phone was accurate to within forty-one meters or 123 feet. Special Agent Steven
understood that the coordinates referred to a location on Dugger Road and that both the
defendant‟s property and a neighbor‟s property were within the forty-one-meter accuracy
range, but that neither the exact coordinates nor the forty-one-meter accuracy range
included the defendant‟s mobile home and driveway. Special Agent Steven shared the
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GPS information with Trooper Boyd, who included the coordinates in his affidavit.
Special Agent Steven acknowledged that it would be false to state that the ping of Mr.
Medina‟s phone on April 2, 2012, occurred at exactly the same location where Son‟s
truck was parked on March 16, 2012, because they were two different locations.
Lieutenant William Doelle8 of the Maury County Sheriff‟s Department, who was
present on April 24, 2012, when the search warrant was executed, also testified at the
suppression hearing. He stated that the 4571 Dugger Road property consisted of
approximately six acres and that the defendant‟s residence was situated near the road and
a dirt path that ran along the back of the property. He confirmed that the GPS
coordinates for Mr. Medina‟s phone were located on the 4571 Dugger Road property,
although the coordinates did not refer to the defendant‟s residence. Lieutenant Doelle
stated that the defendant‟s residence was not visible from the location of the GPS
coordinates.
After considering the testimony presented at the suppression hearing, the trial
court denied the motion to suppress. The trial court concluded that paragraph thirty-
seven did not contain false information. Given the range of accuracy of the GPS
coordinates and the proof showing that Google had returned the location of the GPS
coordinates as 4571 Dugger Road, the trial court “[was] inclined to grant some leniency
relative to the [GPS] location of [the] [d]efendant‟s residence, and [found] that the
[a]ffidavit otherwise describe[d] with sufficient particularity the location of the residence
and the property to be searched.” As for paragraph eighteen, however, the trial court
found that the statement, “[a]s further described below [Son] used [the defendant‟s]
residence . . . on March 16, 2012[,] and April 2, 2012[,] to off[-]load shipments of
marijuana in excess of 100 pounds,” was “false.” The trial court explained:
Affiant, Trooper Shawn Boyd, . . . testified as follows: “I saw [Son‟s] . . .
truck only on March 16, 2012[,] in the driveway of the trailer—pulled in
behind the trailer.” Therefore, on that day only, March 16, 2012, he merely
saw [Son‟s] truck pulled in behind the trailer on [the defendant‟s] property.
The [a]ffidavit stated that further information would be included as to
criminal activity [that] occurred on April 2, 2012[,] and March 16, 2012.
8
Lieutenant Doelle‟s surname is not spelled consistently in the record on appeal; however, this
opinion uses the spelling that appears in the affidavit submitted in support of the forfeiture warrant, which
Lieutenant Doelle signed.
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There is nothing else in the [a]ffidavit relative to these dates and specific
criminal activity actually observed on [the defendant‟s] property. Trooper
Boyd testified that this was a “simple mistake.” There is nothing in the
[a]ffidavit and there is no testimony of any marijuana or other narcotics
being delivered, loaded[,] or off-loaded at [the defendant‟s address].
Nevertheless, the trial court concluded that the false statement had not been made
“with intent to deceive the [c]ourt” and, while important, the trial court could not “say it
[was] a false statement „essential to the establishment of probable cause, recklessly
made.‟” The trial court considered the “other facts and statements” in the affidavit,
“including what else happened on March 16, 2012 and April 2, 2012,” and concluded that
the affidavit had sufficiently established “a nexus between the criminal activity and [the
defendant‟s] property,” and that the affidavit sufficiently established probable cause. The
trial court explained:
the specifics of the intercepted phone calls and information from wire taps
from Texas to Alabama to Tennessee, and information received from the
investigation of a drug trafficking operation based in Texas, involving
[Son]; the surveillance of [Mr.] Medina and [Mr.] Biato traveling from
Alabama to Tennessee and then to Columbia, exiting at 373 (Culleoka
Highway), then meeting up with [Son]; the [a]ffiant‟s statement that he
drove by [the defendant‟s] residence and located [Son‟s] Nissan Titan there
on the morning of March 16, 2012, after surveillance was unable to be
maintained, then observed [Son] pull onto Highway 373, then Highway 50
and onto I-65; the GPS ping of [Mr.] Medina‟s phone on April 2, 2012,
placing him on Dugger Road; the fact that [a]ffiant was familiar with the
exact location of [the defendant‟s] residence through the 2000
investigation; and the fact that the exact location of [the defendant‟s]
residence is correctly described with great particularity, despite the wrong
GPS numerics.
As a result of these findings, the trial court denied the motion to suppress.
A majority of the Court of Criminal Appeals reversed and concluded that the
search warrant affidavit failed to establish a sufficient nexus between the defendant‟s
residence and criminal activity, failed to establish the basis of knowledge and credibility
of the information provided by Mr. Davis, an informant from the criminal milieu, and
contained recklessly made false statements essential to establishing probable cause. State
v. Tuttle, No. M2014-00566-CCA-R3-CD, 2015 WL 5251990, at *1 (Tenn. Crim. App.
Sept. 8, 2015).
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C. Analysis
1. Standards of Review
Familiar standards govern our review of suppression issues. We uphold the trial
court‟s findings of fact, unless the evidence preponderates against them. State v. Bell,
429 S.W.3d 524, 528 (Tenn. 2014) (citing State v. Climer, 400 S.W.3d 537, 556 (Tenn.
2013); State v. Day, 263 S.W.3d 891, 900 (Tenn. 2008)). “Questions 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.” State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). The party prevailing 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 [the] evidence.” Bell,
429 S.W.3d at 529 (citing State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012); Day, 263
S.W.3d at 900; Odom, 928 S.W.2d at 23)). The application of law to facts is reviewed de
novo, and the appellate court is not obliged to afford a presumption of correctness to the
lower court‟s conclusions of law. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (citing
State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626,
629 (Tenn. 1997)).
An appellate court considering whether probable cause supported issuance of a
search warrant, “may consider only the affidavit and may not consider other evidence
provided to or known by the issuing magistrate or possessed by the affiant.” State v.
Henning, 975 S.W.2d 290, 295 (Tenn. 1998); see also Jacumin, 778 S.W.2d at 432. The
reviewing court‟s standard is whether the evidence viewed as a whole provided the
magistrate with “a substantial basis for concluding that a search warrant would uncover
evidence of wrongdoing.” Jacumin, 778 S.W.2d at 432 (citing Gates, 462 U.S. at 236;
Spinelli, 393 U.S. at 419).
2. Probable Cause and the Preference for Warrants
Under the Fourth Amendment to the United States Constitution9 and article I,
section 7 of the Tennessee Constitution10 search warrants may not be issued unless a
9
The Fourth Amendment, which applies to the States through the Fourteenth Amendment, see
Mapp v. Ohio, 367 U.S. 643, 655 (1961), provides:
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neutral and detached magistrate determines that probable cause exists for their issuance.
Gates, 462 U.S. at 240; Henning, 975 S.W.2d at 294; Jacumin, 778 S.W.2d at 431.
“„Articulating precisely what probable cause means is not possible.‟” State v. Reynolds,
504 S.W.3d 283, 300 (Tenn. 2016) (quoting Ornelas v. United States, 517 U.S. 690, 695
1996) (quotation marks and alterations omitted)). “Probable cause is more than a mere
suspicion but less than absolute certainty.” Id. (internal citations and quotation marks
omitted). “[T]he strength of the evidence necessary to establish probable cause . . . is
significantly less than the strength of evidence necessary to find a defendant guilty
beyond a reasonable doubt.” State v. Bishop, 431 S.W.3d 22, 41 (Tenn. 2014); see also
Brinegar v. United States, 338 U.S. 160, 174 (1949) (discussing the differences between
the probable cause standard and the standard for proving guilt beyond a reasonable
doubt). Probable cause, as its name implies, deals with probabilities. Brinegar, 338 U.S.
at 175; Jacumin, 778 S.W.2d at 432. “These [probabilities] are not technical; they are the
factual and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.” Brinegar, 338 U.S. at 175; see also Reynolds, 504
S.W.3d at 300 (recognizing that the probable cause standard is practical and
nontechnical).
“Determinations of probable cause are extremely fact-dependent.” Bell, 429
S.W.3d at 534-35 (citing Ker v. California, 374 U.S. 23, 33 (1963)). Reviewing courts
afford “great deference” to a magistrate‟s determination that probable cause exists.
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV.
10
Article I, section 7 provides:
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 to be
granted.
Tenn. Const. art. I, § 7.
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Jacumin, 778 S.W.2d at 431-32; see also State v. Saine, 297 S.W.3d 199, 207 (Tenn.
2009) (reiterating that appellate courts should afford deference to a magistrate‟s
determination). “[I]n a doubtful or marginal case a search under a warrant may be
sustainable where without one it would fall.” United States v. Ventresca, 380 U.S. 102,
106 (1965).
The point of the Fourth Amendment . . . is not that it denies law
enforcement the support of the usual inferences which reasonable men draw
from evidence. Its protection consists in requiring that those inferences be
drawn by a neutral and detached magistrate instead of being judged by the
officer engaged in the often competitive enterprise of ferreting out crime.
Ventresca, 380 U.S. at 106 (quoting Johnson v. United States, 333 U.S. 10, 13-14
(1948)).
3. The Role of and Requirements for Search Warrant Affidavits
In Tennessee, probable cause for issuance of a warrant is established by presenting
“a sworn and written affidavit” to the magistrate. Saine, 297 S.W.3d at 205-06; see also
Henning, 975 S.W.2d at 294; Jacumin, 778 S.W.2d at 432. “To ensure that the
magistrate exercises independent judgment, the affidavit must contain more than mere
conclusory allegations by the affiant.” Henning, 975 S.W.2d at 294. The affidavit must
include facts from which the neutral and detached magistrate may determine, upon
examining the affidavit in a commonsense and practical manner, whether probable cause
exists. State v. Smotherman, 201 S.W.3d 657, 662 (Tenn. 2006); Henning, 975 S.W.2d
at 294. When the affidavit seeks to establish probable cause for a search warrant, it 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). In other
words, the affidavit must demonstrate a nexus between the criminal activity, the place to
be searched, and the items to be seized. Saine, 297 S.W.3d at 206 (citing State v. Reid,
91 S.W.3d 247, 273 (Tenn. 2002); Smith, 868 S.W.2d at 572). “The 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
evidence.” Smith, 868 S.W.2d at 572.
Additionally, in determining whether the nexus has been sufficiently established,
courts may “„consider whether the criminal activity under investigation was an isolated
event or a protracted pattern of conduct[,] . . . the nature of the property sought, the
normal inferences as to where a criminal would hide the evidence, and the perpetrator‟s
opportunity to dispose of incriminating evidence.‟” Saine, 297 S.W.3d at 206 (quoting
Reid, 91 S.W.3d at 275). Although a nexus between the place to be searched and the
items to be seized must be established, unlike an affidavit in support of an arrest warrant,
an affidavit seeking issuance of a search warrant need not implicate a particular person in
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the crime under investigation. See Zurcher v. The Stanford Daily, 436 U.S. 547, 556
(1978); United States v. Burney, 778 F.3d 536, 540 (6th Cir. 2015).
“The time of the occurrence of the facts relied upon by the affiant is [also] a prime
element in establishing probable cause for the issuance of a search warrant. If the
information contained in the affidavit is too old, it is considered stale” and will be
insufficient to establish probable cause. W. Mark Ward, Tennessee Criminal Trial
Practice, § 4.11 (2016-17 ed.) [hereinafter Tennessee Criminial Trial Practice]; see also
Everett v. State, 184 S.W.2d 43, 45 (Tenn. 1944); Welchance v. State, 114 S.W.2d 781,
782 (Tenn. 1938). Nevertheless, there is no hard and fast rule defining staleness, and
“[w]hen the illegal activity described is ongoing, courts have generally held that [an]
affidavit does not become stale with the passage of time.” State v. Thomas, 818 S.W.2d
350, 357 (Tenn. Crim. App. 1991); see also State v. Norris, 47 S.W.3d 457, 470-71
(Tenn. Crim. App. 2000); State v. McCary, 119 S.W.3d 226, 249 (Tenn. Crim. App.
2003).
An affidavit may include information that would not be admissible as evidence in
a criminal trial, Brinegar, 338 U.S. at 172-73, and an affidavit need not reflect the direct
personal observations of the affiant. Henning, 975 S.W.2d at 294; Jacumin, 778 S.W.2d
at 432. The reliability of hearsay information included in an affidavit is evaluated
differently, however, depending upon its source. State v. Williams, 193 S.W.3d 502, 507
(Tenn. 2006). If the source of the information is a law enforcement officer, “[n]o special
showing of reliability is necessary.” Smotherman, 201 S.W.3d at 663 (citing Ventresca,
380 U.S. at 111). But this presumption of reliability applies only if the affidavit states
that the “information [was] provided by other officers.” Id. (citing United States v. Kirk,
781 F.2d 1498, 1505 (11th Cir. 1986)). A presumption of reliability also applies to
citizen informants, so long as the affidavit identifies the source of the information as a
citizen informant. Williams, 193 S.W.3d at 507.
By contrast, no presumption of reliability applies to information supplied by an
unknown informant or an informant from the “criminal milieu.” Smotherman, 201
S.W.3d at 662 (citing Williams, 193 S.W.3d at 507; Jacumin, 778 S.W.2d at 436). In
such circumstances, the affidavit must establish both the criminal informant‟s basis of
knowledge and his or her veracity or credibility. Williams, 193 S.W.3d at 507 (citing
Jacumin, 778 S.W.2d at 436; State v. Cauley, 863 S.W.2d 411, 417 (Tenn. 1993)).
This two-pronged test derives from two United States Supreme Court decisions—
Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969).
However, in 1983 the United States Supreme Court abandoned the Aguilar/Spinelli test
and adopted a totality-of-the-circumstances analysis for determining whether an affidavit
that includes information from a criminal informant establishes probable cause. Gates,
462 U.S. at 238-39. Six years after Gates, however, this Court declined to follow Gates
and chose to retain the Aguilar/Spinelli test as a matter of Tennessee constitutional law.
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Jacumin, 778 S.W.2d at 436. In the order granting the State‟s application for permission
to appeal in this case, we directed the parties to brief and argue the issue of “whether this
Court should revisit the continuing vitality of State v. Jacumin, 778 S.W.2d 430 (Tenn.
1989).” We now take this opportunity to do so.
4. Aguilar/Spinelli Analysis vs. Gates Analysis
In Aguilar, the United States Supreme Court held that the magistrate reviewing a
search warrant affidavit “must be informed of some of the underlying circumstances from
which the informant concluded that the narcotics were where he claimed they were, and
some of the underlying circumstances from which the officer concluded that the
informant, whose identity need not be disclosed . . . was „credible‟ or his information
„reliable.‟” 378 U.S. at 114. Five years later, in Spinelli, the Supreme Court reiterated
these requirements, but added that these prongs could be established through
corroborating evidence. 393 U.S. at 415-16. Therefore, under the Aguilar/Spinelli test
the affidavit must include facts from which the magistrate may determine the informant‟s
“basis of knowledge” and “veracity” or credibility, and if the information provided fails
to establish either prong, corroborating evidence may make up the deficit. Aguilar, 378
U.S. at 114; Spinelli, 393 U.S. at 415-16; Smotherman, 201 S.W.3d at 662; Cauley, 863
S.W.2d at 417; Jacumin, 778 S.W.2d at 432, 436.
The first prong of the Aguilar/Spinelli test—“„basis of knowledge‟ . . . is
concerned with the question, „How did the informant get the information?‟ Its purpose is
to prevent warrants from being issued based on conjecture or rumors. Generally
speaking, facts and circumstances indicating that the information came from an informant
who had obtained the information first[-] hand or by personal observation will satisfy this
prong.” Tennessee Criminal Trial Practice at § 4:10. This prong may also be satisfied
when the informant provides “highly detailed” information “such that the magistrate
could know that the informant was relating something more than casual rumor or
reputation.” Id. The second prong of the test, veracity or credibility, “may be satisfied
either by (1) demonstrating the informant‟s credibility or (2) by showing that the
information is reliable.” Id. In other words, “the affiant must provide some concrete
reason why the magistrate should believe the informant,” although the “requisite volume
or detail of information needed to establish the informant‟s credibility is not particularly
great.” State v. Lowe, 949 S.W.2d 300, 305 (Tenn. Crim. App. 1996). Nevertheless,
“each prong represents an independently important consideration that must be separately
considered and satisfied or supplemented in some way.” Jacumin, 778 S.W.2d at 436
(internal quotation marks and citations omitted); see also Smotherman, 201 S.W.3d at
662 (recognizing that each prong must be separately satisfied to establish probable
cause).
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The Gates Court rejected the proposition (embraced by Jacumin) “that these
elements should be understood as entirely separate and independent requirements to be
rigidly exacted in every case . . . .” Gates, 462 U.S. at 230-31 & nn.5-6. The Gates Court
held that Aguilar and Spinelli had been misinterpreted and applied in an overly rigid
fashion. The Supreme Court declared that “[r]igid legal rules” are “ill-suited” to evaluate
informants‟ tips, which, “„like all other clues and evidence coming to a policeman on the
scene[,] may vary greatly in their value and reliability.‟” Id. at 232 (quoting Adams v.
Williams, 407 U.S. 143, 147 (1972)). The Gates Court commented that the
Aguilar/Spinelli test “ha[d] encouraged an excessively technical dissection of informants‟
tips, with undue attention being focused on isolated issues that cannot sensibly be
divorced from the other facts presented to the magistrate.” Id. at 234-35.
The Gates Court theorized that “the type of scrutiny some courts ha[d] deemed
appropriate” under the Aguilar/Spinelli test could actually discourage police officers from
attempting to obtain warrants and encourage them to “resort to warrantless searches, with
the hope of relying on consent or some other exception to the warrant clause that might
develop at the time of the search.” Id. at 236. As a result, the Gates Court posited that
the Aguilar/Spinelli test had served to frustrate the Court‟s preference for the warrant
process, which was reflected in the standard of appellate review—whether the magistrate
had a substantial basis for concluding that a search would uncover evidence of
wrongdoing. Id. “The rigorous inquiry” and “complex superstructure of evidentiary and
analytical rules” that had developed around the two-pronged test could not be reconciled
with the reality that “many warrants are—quite properly—issued on the basis of
nontechnical, commonsense judgments of laymen applying a standard less demanding
than those used in more formal legal proceedings.” Id. at 235-36 (internal citations
omitted).
The Gates Court also opined that the Aguilar/Spinelli test, when applied rigidly,
“poorly serve[d]” the government‟s most basic function of providing for the security of
individual citizens and property because an “anonymous tip seldom could survive a
rigorous application” of the two-pronged test, even though “such tips, particularly when
supplemented by independent police investigation, frequently contribute to the solution
of otherwise „perfect crimes.‟” Id. at 237-38. “While a conscientious assessment of the
basis for crediting such tips is required by the Fourth Amendment, a standard that leaves
virtually no place for anonymous citizen informants is not.” Id. at 238.
The Gates Court emphasized, however, “that an informant‟s „veracity,‟
„reliability‟ and „basis of knowledge‟” remain “highly relevant in determining the value
of his report” under the totality-of-the-circumstances analysis but “should be understood
simply as closely intertwined issues that may usefully illuminate the commonsense,
practical question whether there is „probable cause‟ to believe that contraband or
evidence is located in a particular place.” Gates, 462 U.S. at 230.
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The task of the issuing magistrate is simply to make a practical,
commonsense decision whether, given all the circumstances set forth in the
affidavit before him, including the “veracity” and “basis of knowledge” of
persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place. And
the duty of a reviewing court is simply to ensure that the magistrate had a
substantial basis for concluding that probable cause existed.
Id. at 238-39 (internal quotation marks and citations omitted). The Gates Court was
“convinced that this flexible, easily applied standard” would “better achieve the
accommodation of public and private interests” required by the Fourth Amendment. Id.
at 239.
Nevertheless, the Gates Court cautioned that, “[s]ufficient information must be
presented to the magistrate to allow that official to determine probable cause; his action
cannot be a mere ratification of the bare conclusions of others. In order to ensure that
such an abdication of the magistrate‟s duty does not occur,” the Gates Court reiterated
that courts should conscientiously review affidavits and strike as insufficient “„bare
bones‟ affidavits” containing conclusions rather than facts. Gates, 462 U.S. at 239. The
Gates Court emphasized “the value of corroboration of details of an informant‟s tip by
independent police work” to the totality-of-the-circumstances analysis, id. at 241, and did
not discount the value of corroboration of innocent conduct, explaining, “[i]t is enough,
for purposes of assessing probable cause, that „corroboration through other sources of
information reduced the chances of a reckless or prevaricating tale,‟ thus providing „a
substantial basis for crediting the hearsay.‟” Id. at 244-45 (quoting Jones v. United
States, 362 U.S. 269, 271 (1960)).
5. The Jacumin Decision
In declining six years later to follow Gates, the Jacumin Court characterized the
totality-of-the-circumstances test as “inadequate as a test of probable cause.” Jacumin,
778 S.W.2d at 435. The Jacumin Court conceded that “the task of the issuing magistrates
and the duty of the reviewing court[s] . . . are the same under either the Gates standard or
the Aguilar[/]Spinelli standard.” Id. at 435 n.2. Nevertheless, the Jacumin Court held that
the Aguilar/Spinelli standard, “if not applied hypertechnically,” provides “a more
appropriate structure for probable cause inquiries incident to the issuance of a search
warrant than does Gates,” Jacumin, 778 S.W.2d at 436, and concluded that the
Aguilar/Spinelli standard is “more in keeping with the specific requirement of [a]rticle I,
[s]ection 7 of the Tennessee Constitution that a search warrant not issue „without
evidence of the fact committed,‟” id. (quoting Tenn. Const. art. I, § 7). The Jacumin
Court acknowledged that article I, section 7 of the Tennessee Constitution had previously
been interpreted as “identical in intent and purpose” with the Fourth Amendment and that
the Court of Criminal Appeals had already applied Gates in several decisions. Jacumin,
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778 S.W.2d at 435. The Jacumin Court justified its decision to part company with Gates
by referring to prior Tennessee decisions interpreting the open fields doctrine under the
state constitution as “somewhat more restrictive than federal cases,” id. (citing State v.
Lakin, 588 S.W.2d 544, 549 (Tenn. 1979)), and by pointing out that courts in a few other
states, specifically Alaska, Massachusetts, Washington, and New York, also had declined
to adopt the totality-of-the-circumstances analysis on state constitutional law grounds,
describing it as “unacceptably shapeless and permissive,” id. at 435-36, and “nebulous,”
id. at 436 (internal quotations marks omitted). Nevertheless, in subsequent decisions
applying the Aguilar/Spinelli standard, this Court, like the Gates Court, has emphasized
the role of corroboration:
The credibility of the informant‟s information may also be buttressed by
independent corroboration of its details. However, it is not necessary to
corroborate every detail of the informant‟s information, or to “directly link
the suspect to the commission of the crime.” Corroboration of “only
innocent aspects of the story” may suffice.
Bishop, 431 S.W.3d at 38 (quoting State v. Melson, 638 S.W.2d 342, 355 (Tenn. 1982))
(internal citation omitted).
6. Reconsideration of Jacumin
The overwhelming majority of states now apply the Gates totality-of-the-
circumstances analysis for determining whether an affidavit establishes probable cause
for issuance of a search warrant.11 Indeed, Tennessee is one of only a handful of states
11
See State v. Clayton, 155 So. 3d 290, 295-96 (Ala. 2014); State v. McCall, 677 P.2d 920, 929
n.2 (Ariz. 1983) (en banc); Thompson v. State, 658 S.W.2d 350, 352 (Ark. 1983); People v. Camarella,
818 P.2d 63, 67-68 (Cal. 1991) (en banc); People v. Quintana, 785 P.2d 934, 938 (Colo. 1990) (en banc);
State v. Barton, 594 A.2d 917, 926-27 (Conn. 1991); Gardner v. State, 567 A.2d 404, 409 (Del. 1989);
State v. Butler, 655 So. 2d 1123, 1125 (Fla. 1995); State v. Stephens, 311 S.E.2d 823, 826 (Ga. 1984);
State v. Lang, 672 P.2d 561, 562 (Idaho 1983); People v. Tisler, 469 N.E.2d 147, 157 (Ill. 1984); State v.
Bousman, 387 N.W.2d 605, 610 (Iowa 1986), subsequently modified by statute as explained in State v.
Myers, 570 N.W.2d 70, 73-74 (Iowa 1997); State v. Abu-Isba, 685 P.2d 856, 860 (Kan. 1984); Beemer v.
Commonwealth, 665 S.W.2d 912, 915 (Ky. 1984); State v. Ruffin, 448 So. 2d 1274, 1278 (La. 1984);
State v. Knowlton, 489 A.2d 529, 533 (Me. 1985); Potts v. State, 479 A.2d 1335, 1340 (Md. 1984);
People v. Levine, 600 N.W.2d 622, 626, 629 (Mich. 1999); State v. Zanter, 535 N.W.2d 624, 633 (Minn.
1995); McCommon v. State, 467 So. 2d 940, 941 (Miss. 1985); State v. Hosier, 454 S.W.3d 883, 892 n.6,
894 (Mo. 2015) (en banc); State v. Jensen, 704 P.2d 45, 47 (Mont. 1985); State v. Ildefonso, 634 N.W.2d
- 22 -
that still applies the two-pronged Aguilar/Spinelli test as a matter of state statutory or
constitutional law.12 Having now reconsidered both tests, we conclude that the time has
come to abandon the rigid Aguilar/Spinelli test and adopt the Gates totality-of-the-
circumstances analysis.
Overruling Jacumin and adopting the Gates totality-of-the-circumstances test is
warranted for several reasons. First, the Aguilar/Spinelli test is often applied too rigidly.
The decision of the intermediate appellate court in this appeal exemplifies the type of
hypertechnical application that this Court warned against in Jacumin. For example, Mr.
Davis, the criminal informant, described the DTO with which Son was involved,
explained the basis of his own knowledge by admitting that he, too, had been involved
with the same DTO, described the type and amount of drugs and the frequency of
shipments to Son, identified Son from his driver‟s license photograph, provided law
enforcement with Son‟s nickname, “Red,” described Son‟s vehicle, described the area
where Son resided near Nashville, and stated that Son‟s whole family was involved in
drug trafficking. Rather than seeking a search warrant based solely on the information
Mr. Davis provided, law enforcement officials corroborated, in some fashion, almost
every aspect of the information, including Mr. Davis‟s involvment with the DTO, the
DTO‟s Tennessee client known as Red, the type of vehicle Son drove, the location of his
residence, Son‟s meetings with agents of the DTO near the 4571 Dugger Road property,
252, 261-62 (Neb. 2001); Barrett v. State, 775 P.2d 1276, 1277 (Nev. 1989); State v. Carroll, 552 A.2d
69, 73-74 (N.H. 1988); State v. Novembrino, 519 A.2d 820, 836 n.11 (N.J. 1987); State v. Hughes, 539
S.E.2d 625, 628 (N.C. 2000); State v. Ringquist, 433 N.W.2d 207, 212 (N.D. 1988); State v. George, 544
N.E.2d 640, 643-45 (Ohio 1989); Langham v. State, 787 P.2d 1279, 1280-81 (Okla. Crim. App. 1990);
Commonwealth v. Gray, 503 A.2d 921, 925-26 (Pa. 1985); State v. Pratt, 641 A.2d 732, 736 (R.I. 1994);
State v. Jones, 536 S.E.2d 675, 678-79 (S.C. 2000); State v. Raveydts, 691 N.W.2d 290, 293 (S.D. 2004);
Green v. State, 736 S.W.2d 218, 219 (Tex. App. 1987); State v. Espinoza, 723 P.2d 420, 421 (Utah 1986);
Derr v. Commonwealth, 410 S.E.2d 662, 666 (Va. 1991); State v. Adkins, 346 S.E.2d 762, 773-74 (W.
Va. 1986); State v. Robinson, 786 N.W.2d 463, 471-72 n.11 (Wis. 2010); Bonsness v. State, 672 P.2d
1291, 1293 (Wyo. 1983).
12
State v. Jones, 706 P.2d 317, 322-24 (Alaska 1985); Carlisle ex rel. State v. Ten Thousand
Four Hundred Forty-Seven Dollars in U.S. Currency ($10,447.00), 89 P.3d 823, 830 n.9 (Haw. 2004);
Commonwealth v. Upton, 476 N.E.2d 548, 556 (Mass. 1985); State v. Cordova, 784 P.2d 30, 36 (N.M.
1989); People v. DiFalco, 610 N.E.2d 352, 353 n.1 (N.Y. 1993); State v. Coffey, 788 P.2d 424, 426 n.4
(Or. 1990); State v. Goldberg, 872 A.2d 378, 381 (Vt. 2005); State v. Jackson, 688 P.2d 136, 141-43
(Wash. 1984) (en banc).
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at which Son had previously concealed cash derived from the illegal drug trade, and even
his family‟s previous involvement in Son‟s earlier drug trafficking activities.
The intermediate appellate court majority correctly acknowledged that the
affidavit was “replete” with corroboration of the information Mr. Davis provided
implicating Son in drug trafficking activities, but it held the affidavit insufficient because
it lacked facts connecting or implicating the defendant in Son‟s drug trafficking activities.
In reaching this conclusion, the intermediate appellate court dissected and parsed Mr.
Davis‟s statement and considered in isolation each aspect of the information, as well as
the independent corroboration, searching for direct corroborating evidence of each detail,
even though this Court has previously explained that it is not necessary to corroborate
every detail of an informant‟s information. Bishop, 431 S.W.3d at 38. The intermediate
appellate court also apparently failed to recognize that information implicating the
defendant in the underlying crime was not necessary to establish probable cause for
issuance of a search warrant for a certain property, so long as the affidavit included facts
establishing a nexus between the 4571 Dugger Road property and the drugs. See
Zurcher, 436 U.S. at 556 (“The critical element in a reasonable search is not that the
owner of the property is suspected of crime but that there is reasonable cause to believe
that the specific „things‟ to be searched for and seized are located on the property to
which entry is sought.”)
Second, unlike the Jacumin Court, we have the benefit of years of experience
applying Jacumin and have had the opportunity to review numerous cases from other
jurisdictions applying Gates. Time has proven that the totality-of-the-circumstances
analysis is not inadequate or too nebulous as a test for determining probable cause.
Under Gates, “an informant‟s „veracity,‟ „reliability,‟ and „basis of knowledge‟” remain
“highly relevant in determining the value of his report,” Gates, 462 U.S. at 230. But by
ensuring that these factors are not viewed as entirely separate prerequisites to probable
cause, requiring rigid, formulistic, and technical analysis, Gates actually improves upon
the Aguilar/Spinelli test. Id. at 230-31.
Moreover, as the Gates Court explained, the totality-of-the-circumstances analysis
is much more consistent with the nontechnical, commonsense approach courts already
apply when determining whether probable cause exists. Id. Indeed, although the
Jacumin Court retained the Aguilar/Spinelli test, it expressly embraced the manner in
which the Gates Court described the role of the magistrate in assessing probable cause,
Jacumin, 778 S.W.2d at 435 n.2, and we have reaffirmed this standard as the governing
law in Tennessee, see, e.g. Saine, 297 S.W.3d at 206 (stating that the task of the
magistrate is to read the affidavit “in a commonsense and practical manner”); State v.
Carter, 160 S.W.3d 526, 533 (Tenn. 2005) (same); Henning, 975 S.W.2d at 294 (same).
- 24 -
Finally, it is certainly true, as the Jacumin Court recognized, that this Court has
the authority to interpret the Tennessee Constitution differently than the federal
constitution and has recognized that textual differences between federal and state
constitutional provisions may support doing so. State v. Watkins, 362 S.W.3d 530, 554-
55 (Tenn. 2012); State v. Vineyard, 958 S.W.2d 730, 733-34 (Tenn. 1997). It is also true,
as the Jacumin Court pointed out, that the text of article I, section 7 differs from the text
of the Fourth Amendment by precluding issuance of a warrant “without evidence of the
fact committed.” Tenn. Const. art. I, § 7. However, the Jacumin Court failed to
recognize that the Fourth Amendment has also been interpreted as precluding issuance of
a warrant unless facts, rather than conclusions, are presented to a magistrate to establish
probable cause. See, e.g., Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325 (1979)
(finding search warrant affidavit containing only conclusory statements of the police
investigator without supporting facts insufficient to establish probable cause under the
Fourth Amendment). Indeed, the Gates Court expressly reaffirmed this principle, stating,
“[s]ufficient information must be presented to the magistrate to allow that official to
determine probable cause; his action cannot be a mere ratification of the bare conclusions
of others.” Gates, 462 U.S. at 239. Therefore, over time the Fourth Amendment has
been interpreted by federal courts in a manner that is entirely consistent with the text of
article I, section 7.
Ironically, despite concluding that the text of article I, section 7 required adoption
of a test distinct from that applied under the Fourth Amendment, the test the Jacumin
Court adopted as the appropriate standard for the Tennessee Constitution derived from
decisions of the United States Supreme Court interpreting the Fourth Amendment. The
Jacumin Court actually acknowledged that the test it adopted did not derive from any
settled development of Tennessee constitutional law founded in the text of article I,
section 7. Jacumin, 778 S.W.2d at 435 (“[I]t is perhaps significant that amicus does not
point to a settled development of state constitutional law in the area of probable cause to
support a search warrant analogous to the „open fields‟ doctrine.”). The Jacumin Court
also acknowledged that article I, section 7 had long been interpreted as “identical in
intent and purpose” to the Fourth Amendment, with federal cases interpreting the Fourth
Amendment regarded as particularly persuasive. Jacumin, 778 S.W.2d at 435 (citing
Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968)). We have recently reiterated these
principles. See, e.g., State v. Willis, 496 S.W.3d 653, 719 (Tenn. 2016); State v. Davis,
484 S.W.3d 138, 143 (Tenn. 2016). We are not convinced that the textual difference
between article I, section 7 and the Fourth Amendment ever supported departing from
these general principles.
For all these reasons, we overrule Jacumin, insofar as it retained the
Aguilar/Spinelli test, and adopt the Gates totality-of-the-circumstances analysis, which is,
in our judgment and that of the vast majority of courts in other states, a sufficiently
definite standard for assessing probable cause and much better suited to evaluating the
practicalities that underlie the probable cause inquiry. We reiterate that, under the
- 25 -
totality-of-the-circumstances analysis, the informant‟s basis of knowledge and veracity or
credibility remain highly relevant considerations. Rather than separate and independent
considerations, they “should [now] be understood simply as closely intertwined issues
that may usefully illuminate the commonsense, practical question whether there is
„probable cause‟ to believe that contraband or evidence is located in a particular place.”
Gates, 462 U.S. at 230. Thus, we will apply the Gates test to determine whether the
affidavit sufficiently established probable cause for issuance of the warrant.
7. False Information in the Affidavit
Before applying the totality-of-the circumstances analysis in this case, we must
first review the Court of Criminal Appealsʼ ruling that Trooper Boyd recklessly included
false statements in paragraphs eighteen and thirty-seven of the affidavit. This ruling, if
upheld, would require us to exclude the information in those paragraphs when assessing
whether the affidavit sufficiently established probable cause.
“[T]here are two circumstances that authorize the impeachment of an affidavit
sufficient on its face[:] (1) a false statement made with intent to deceive the Court,
whether material or immaterial to the issue of probable cause[;] and (2) a false statement,
essential to the establishment of probable cause, recklessly made.” State v. Little, 560
S.W.2d 403, 407 (Tenn. 1978). “Allegations of negligence or innocent mistakes are
insufficient to invalidate the search warrant.” State v. Yeomans, 10 S.W.3d 293, 297
(Tenn. Crim. App. 1999) (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)). The
defendant bears the burden of proving the allegation of falsity by a preponderance of the
evidence. Id. (citing Franks, 438 U.S. at 156).
As already noted, the defendant here alleged that false statements were included in
paragraphs eighteen and thirty-seven of the affidavit. The trial court agreed with the
defendant as to paragraph eighteen, concluding that the following statement in that
paragraph falsely indicated that Trooper Boyd had observed the offloading of marijuana
at the defendant‟s residence: “As further described below [Son] used this residence on
March 16, 2012 and April 2, 2012 to off load shipments of marijuana in excess of 100
pounds.” But the trial court concluded that Trooper Boyd‟s description of the GPS ping
of Mr. Medina‟s cell phone as the same “location” where Son‟s truck had been observed
three weeks earlier was not false. Furthermore, the trial court concluded that, while
paragraph eighteen included a false statement, the statement had not been recklessly
made and was not material to probable cause. The Court of Criminal Appeals disagreed,
concluding that both statements were false, were recklessly made, and were material to
establishing probable cause. We are of the opinion that neither statement was false.
Nowhere in paragraph eighteen did Trooper Boyd state or imply that he, or anyone
else, had observed the offloading of marijuana at the defendant‟s residence. Rather, he
merely expressed his belief, “[a]s further described below” that Son “had used the
- 26 -
residence on March 16, 2012 and April 2, 2012 to off load shipments of marijuana in
excess of 100 pounds.” Furthermore, in the portions of the affidavit that followed this
statement of his belief, Trooper Boyd did not state, suggest, or imply that he or anyone
else had actually observed drugs being offloaded on the property or at the defendant‟s
residence. The magistrate was free to review the description Trooper Boyd provided and
either agree or disagree with Trooper Boyd‟s belief regarding Son‟s use of the
“residence” to offload drugs.
During his testimony at the suppression hearing Trooper Boyd agreed that he
should have used “property” rather than “residence” in paragraph eighteen, because he
did not actually believe the drugs had been offloaded at the defendant‟s “residence.” We,
too, believe “property” would have been a better word choice, given that the property in
question comprised nearly six acres. However, “affidavits for search warrants . . . must
be tested and interpreted by magistrates and courts in a commonsense and realistic
fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal
investigation. Technical requirements of elaborate specificity . . . have no proper place in
this arena.” Ventresca, 380 U.S. at 108; see also Norris, 47 S.W.3d at 468 (explaining
that an affiant‟s words should be given their ordinary meaning and interpretation).
Hypertechnical judicial review of affidavits “„tends to demean our system of justice and
to weaken society‟s confidence in it.‟” Bishop, 431 S.W.3d at 38 (quoting State v. Moon,
841 S.W.2d 336, 342 (Tenn. Crim. App. 1992)). Tested against this standard, we have
no hesitation in concluding that the language in paragraph eighteen, although admittedly
imprecise and perhaps resulting from negligence, does not constitute a false statement.
The same is true of the language in paragraph thirty-seven. As the trial court
recognized, GPS has a range of accuracy. All of the testimony at the suppression hearing
indicated that Google identified the location of the GPS coordinates listed in paragraph
thirty-seven as 4571 Dugger Road. In reversing the trial court, the intermediate appellate
court appears to have interpreted “location” in paragraph thirty-seven as denoting a
particular spot on the driveway outside the defendant‟s residence where Son‟s truck had
been observed three weeks earlier. This interpretation is simply overly technical and
unrealistic. Trooper Boyd did not say that the GPS coordinates placed Mr. Medina‟s cell
phone on the driveway where Son‟s vehicle was parked. He said only that the GPS ping
placed it at the same “location” where the Son‟s vehicle had been seen three weeks
earlier. The proof at the suppression hearing established that the GPS coordinates
included in paragraph thirty-seven accurately reflected where the drug transaction
occurred on the 4571 Dugger Road property. Accordingly, while the record establishes
that Trooper Boyd could have chosen more precise language, it fails to establish that he
recklessly included false information in the affidavit. At most, he made two innocent
mistakes in wording the affidavit—mistakes that are typical when nonlawyers draft
affidavits “in the midst and haste of a criminal investigation.” Ventresca, 380 U.S. at
108. Having so concluded, we turn next to consider whether the affidavit sufficiently
established probable cause.
- 27 -
8. Sufficiency of Trooper Boyd’s Affidavit under the Gates Standard
Applying the previously discussed standards, we conclude that Trooper Boyd‟s
affidavit provided the magistrate with a substantial basis for concluding from the totality
of the circumstances that a search warrant for the almost six-acre 4571 Dugger Road
property would uncover evidence of wrongdoing. The affidavit explained how the
investigation began, recited the information Mr. Davis had provided, including: that an
out-of-state DTO, represented by Mr. Medina, was delivering large quantities of
marijuana to Son in Tennessee multiple times each month; that Son drove a white Nissan
Truck and went by the nickname Red; and that Son‟s whole family was involved in
trafficking drugs. The affidavit also described the ways in which law enforcement
officials had corroborated Mr. Davis‟s information, including confirming his involvement
with the same DTO. The affidavit explained that Son had pleaded guilty in 2002 to
criminal offenses arising from his involvement in drug trafficking activities and that Son
had concealed cash derived from his earlier drug trafficking activities at the defendant‟s
residence located on the 4571 Dugger Road property. The affidavit detailed how
wiretaps and surveillance had confirmed that the DTO with which Mr. Medina was
affiliated had been transporting large shipments of marijuana from other states into
Tennessee and that the DTO had previously dealt with Mr. Davis. The affidavit also
relayed how wiretaps and surveillance had confirmed that Son was working with Mr.
Medina‟s DTO and that Son was known as Red. The affidavit described how law
enforcement officials had observed Son meeting with agents of the DTO twice at markets
just off Interstate 65 and near the 4571 Dugger Road property and had observed the DTO
agent follow Son onto a rural road leading to the 4571 Dugger Road Property. The
affidavit explained that officers were unable to follow Son and the DTO agent onto the
rural road, but on the first occasion, later observed Son‟s vehicle parked in the driveway
of the defendant‟s residence on the 4571 Dugger Road property, and on the second
occasion, a GPS ping of Mr. Medina‟s cellphone indicated that the phone was located on
the 4571 Dugger Road property. Additionally, the affidavit listed a great deal of
information that Trooper Boyd had learned from his own experience and training about
how drug traffickers function, including the typical locations that are used to conceal
drugs and proceeds from drug trafficking.
When the totality of the circumstances detailed in the affidavit are viewed in a
commonsense and practical manner, we have no hesitation in concluding that the
affidavit provided the magistrate with a substantial basis for determining that a search of
the 4571 Dugger Road property would uncover evidence of wrongdoing. In reaching this
conclusion, we necessarily reject the defendant‟s argument that the affidavit failed to
provide a sufficient nexus between the drugs and the 4571 Dugger Road property and his
assertion that the facts purporting to do so were stale. In our judgment, a sufficient nexus
between the drugs and the property was established because the officers twice observed
Son and an agent of the DTO meeting near the 4571 Dugger Road property and driving
onto a rural road leading to the property. Although officers were unable to follow them
- 28 -
onto the rural road for fear of discovery, on one occasion officers observed Son‟s truck
parked in the driveway of the defendant‟s residence, and on the second occasion, officers
obtained a GPS ping placing Mr. Medina‟s cell phone on the property.
Although it is true that officers waited until April 23, 2012, three weeks after Son
met Mr. Medina on April 2, 2012, to seek a search warrant, the affidavit included
subsequently obtained information establishing that Son‟s drug trafficking activities with
Mr. Medina were ongoing. For example, the affidavit quotes portions of an April 11,
2012 conversation between Son and Mr. Medina in which Son is complaining that he had
received only 157 pounds of marijuana when he had paid for 170 pounds, and Mr.
Medina assuring Son that he would receive credit for the shortage, which Trooper Boyd
interpreted, based on his experience, as meaning that Son would receive credit in future
shipments. This conversation occurred only twelve days before the officers sought the
warrant. As already noted, “[w]hen the illegal activity described is ongoing, courts have
generally held that [an] affidavit does not become stale with the passage of time.”
Thomas, 818 S.W.2d at 357. This rule applies here, where the affidavit included facts
indicating that the illegal drug trafficking was ongoing.
Accordingly, we hold that the affidavit sufficiently established probable cause,
reverse the decision of the Court of Criminal Appeals holding otherwise, and reinstate the
judgment of the trial court denying the defendant‟s motion to suppress.
III. Sufficiency of the Trial Evidence
We next consider whether the Court of Criminal Appeals erred in concluding that
the evidence was legally insufficient to support the defendant‟s convictions for
conspiracy to possess over 300 pounds of marijuana with intent to sell it and conspiracy
to commit money laundering.
A. Trial Proof
At trial, Trooper Boyd testified consistently with his April 23, 2012 affidavit and
his testimony at the pretrial suppression hearing, as previously set forth. He further
explained that, in addition to the search warrant for the 4571 Dugger Road property, he
also had obtained warrants for two other places Son frequented: an apartment in Antioch
and the Remuda Circle address in Smyrna. All three search warrants were executed at
approximately the same time on April 24, 2012. During the search of the Antioch
apartment officers recovered less than a pound of marijuana and approximately $11,000.
At the Remuda Circle address officers seized approximately eighty-five pounds of
marijuana, packaged in gallon-sized plastic bags, that were stored inside plastic storage
bins. Other items seized included more than $100,000 cash, Son‟s white Nissan Titan
truck, a drug ledger, and a suitcase, because suitcases were used to transport the
marijuana from Alabama to Tennessee on March 16, 2012, and April 2, 2012. Four or
- 29 -
five cell phones also were seized from the Remuda Circle address, but no text messages
or voice mails were discovered between the defendant and Son regarding drug
trafficking. Trooper Boyd also knew of no communications between the defendant and
Mr. Medina or any other Hispanic drug dealers. Additionally Son‟s drug ledger, located
at the Remuda Circle address, did not mention the defendant. Trooper Boyd noted that it
would have been unnecessary for the defendant to talk with anyone except Son if their
agreement entailed the defendant keeping Son‟s money at the 4571 Dugger Road
property and allowing Son to receive shipments of marijuana on that property. Trooper
Boyd pointed out that they could have agreed to communicate about their illegal
activities in person, which would explain why officers found no incriminating text
messages or cell phone calls between them. Furthermore, Trooper Boyd testified that the
marijuana discovered at the Remuda Circle address had the same packaging, the same
compressed texture, and was of the same Mexican type as that found at the 4571 Dugger
Road property. Trooper Boyd admitted that, while the plastic bags, material used to
package the marijuana, and even the suitcases at the Remuda Circle address smelled of
axle grease, which drug traffickers often use to conceal the scent of the marijuana, no
axle grease was found on the packaging or marijuana discovered at the 4571 Dugger
Road property. Trooper Boyd also conceded that no law enforcement officer had actually
seen any drugs during the investigation and had only seen suitcases being unloaded and
loaded. He explained, however, that it was not unusual for officers not to see drugs
during an investigation because drugs are ordinarily concealed.
Adrian Breedlove, a Brentwood police officer assigned to Nashville DEA, testified
that, on March 16, 2012, he conducted surveillance on a maroon Ford Expedition and
relayed information to other officers and agents conducting surveillance. He observed
the Expedition leave Interstate 65 at exit 37 and stop at a nearby gas station, and he
noticed that the driver of the vehicle was a Hispanic male, later identified as Mr.
Jaramillo. Officer Breedlove discontinued surveillance and left the gas station when
another member of the surveillance team arrived. Not long after leaving the gas station,
Officer Breedlove drove past the 4571 Dugger Road property and saw a white Nissan
Titan truck parked in the driveway of residence. He entered the tag number of the
vehicle into a computer database and learned that the truck was registered to Son. Officer
Breedlove admitted that he had not seen Son or the defendant on March 16, 2012, only
Son‟s vehicle.
Officer Breedlove also participated in the search of the 4571 Dugger Road
property on April 24, 2012, along with about a dozen other officers from various
agencies. He testified as follows about statements the defendant made on the day the
warrant was executed and about items that were discovered during the search. The
defendant told officers that he had guns in the house, and officers discovered a loaded .45
semiautomatic pistol under the couch cushions in the den and an unloaded nine
millimeter pistol under the couch. They also found a rifle inside a case in a bathroom and
a bolt-action rifle underneath a bed. In the master bedroom, officers found four more
- 30 -
rifles, rifle magazines, three shotguns, a .50 caliber muzzle loader, and a revolver. On the
top shelf of the closet in the master bedroom officers also found a large electronic scale,
capable of weighing items up to thirteen pounds, and, on top of this scale, officers
discovered a bag containing marijuana. A second plastic bag containing smaller Ziploc
bags of marijuana was also found in this closet. In this same closet, near the marijuana
and scales, officers found between $20,000 and $22,000 cash inside a jacket pocket.
Officers discovered a smaller scale capable of weighing items up to two pounds inside a
drawer and a small plastic bag of marijuana. In the master bedroom dresser drawer,
officers discovered a plastic bag containing cocaine and $75,000 in cash, comprised of
$100 and $50 dollar bills. A second small bag of cocaine was found inside a roll top desk
in the den. A third bag of cocaine was discovered on a kitchen shelf above the
refrigerator. Based on the amount of cocaine in the bags, Officer Breedlove opined that it
was likely for personal use. Officers also found a money counting machine, other small
bags of marijuana, a metal grinder commonly used to grind marijuana into a powder,
several butts of marijuana cigarettes, and two pipes that smelled strongly of marijuana.
Officer Breedlove testified that some of the marijuana found at the defendant‟s
residence was still “bricked up”—meaning tightly compressed for easier transport—and
had not been processed for sale. No intact bricks of the marijuana were discovered at
Son‟s Remuda Circle Smyrna address. Nevertheless, Officer Breedlove asserted that the
marijuana found at both places had “similar packaging and pressing techniques.” He also
noted that the marijuana found at Son‟s Remuda Circle address and that found at the
defendant‟s residence had the same stems and seeds present. Officer Breedlove
explained that the more marijuana is “bricked up,” the closer it is to the initial source. He
also stated that when prepared for retail dealers and end users, marijuana is divided into
smaller quantities.
According to Officer Breedlove, the defendant told officers that the marijuana and
drugs inside his home belonged to him and had come “from Mexicans.” The defendant
denied that Son had anything to do with the marijuana found inside his residence when
Officer Breedlove pointed out that the marijuana found at the defendant‟s residence was
very similar to the marijuana found at Son‟s Remuda Circle address.
Outside the defendant‟s residence, officers found an Igloo cooler containing
several marijuana plants in black trash bags. Inside the trunk of a Honda Civic parked
directly in front of the defendant‟s residence, officers located a large ammunition can,
eleven firearms—some of them semiautomatic—and ammunition for these weapons.
Inside the ammunition can, officers found $1,000,300 cash, all in one hundred dollar
bills. Officers also located numerous other items of personal property, including vehicles
and farming equipment.
When the defendant saw the officers discover the items in the Civic‟s trunk, he
remarked, “They found my money.” The defendant told officers the ammunition can
- 31 -
contained about a million dollars and said that he had earned the money cutting hay. As
for the weapons, the defendant claimed that he had them for protection because rumors
had circulated for years that he had $1,000,000 buried on his property, and numerous
trespassers had attempted to steal his money. The defendant denied that the ammunition
can containing the money had ever been buried and said that he had placed it in the trunk
of the Civic a year earlier, in 2011, when he purchased the vehicle. The defendant said
that he had stored the money in the Civic near his residence so he could more easily
watch it. The defendant insisted that the money belonged to him, not to Son. When
asked about Son‟s truck being seen at his home on March 16, 2012, the defendant replied
that he had not seen Son or any Hispanics near his home that day but conceded that he
could have been at work. Officer Breedlove acknowledged that no drug ledgers or other
documents connecting the defendant to the drug trade were found at the defendantʼs
residence.
Jimmy Mann, an officer with the Dickson police department assigned to DEA
Nashville, testified that he had assisted with surveillance in this case. On April 2, 2012,
Officer Mann drove to exit 32, the Culleoka exit, and waited at a Citgo gas station. At the
time, he knew that he was looking for a white Nissan Titan truck and a Lincoln
Navigator. Neither of these vehicles was present when he arrived, so Officer Mann
parked next to the building and waited. Five minutes later, a white Nissan Titan truck
pulled next to the gas pumps, and Son exited the vehicle and began pumping gas.
Approximately fifteen minutes later, a Navigator pulled into the gas station and parked in
front of him. Officer Mann identified the driver of the Navigator as Mr. Medina. Son
and Mr. Medina went inside the store together, came back out, and got into their vehicles.
They left the store at the same time, travelling in the direction of the 4571 Dugger Road
property, with Son‟s truck in the lead. Other officers picked up surveillance on the
vehicles when they left the gas station. Officer Mann acknowledged that the defendant
was not in either of the vehicles that he observed on April 2, 2012.
Joel Rowney, a detective with the Nashville Police Department assigned to the
20th Judicial District Drug Task Force, testified that he arrived at 4571 Dugger Road on
April 24, 2012, while the search warrant was being executed, but after the defendant‟s
residence had been searched. The defendant and his wife answered a few questions but
then refused to speak with him further. Detective Rowney stated that most of the cash
seized on the property was discovered in the ammunition can found in the trunk of the
Civic. Detective Rowney said the can was covered in dirt, which suggested it had been
buried. The cash in the ammunition can consisted entirely of $100 bills, which had been
issued before the year 2000. Rubber bands used to bundle the cash had adhered to
money. Based on the condition of the ammunition can, the rubber bands, and the
issuance dates of the bills, Detective Rowney concluded that the money had been buried
or concealed for over twelve years.
- 32 -
Detective Rowney stated that he did not issue a written notice of seizure to the
defendant on the date the cash was seized. Instead, his secretary sent the notice of seizure
to the defendant by certified mail at a later date that Detective Rowney could not recall.
Detective Rowney explained that it had been his practice for eleven years to list the date
of delivery of the notice of seizure as the date the property was seized, regardless of the
date the notice of seizure was actually delivered. Detective Rowney explained that when
a large amount of cash is seized, the standard procedure is for officers to deliver the cash
to a bank, so that it can be counted and the total verified. Thereafter, officers send the
owner a notice of seizure via certified mail, listing the accurate and verified total of the
cash seized. The bank had closed by the time officers finished executing the search
warrant on April 24, 2012. Therefore, Detective Rowney informed the defendant that he
would receive a notice later via certified mail. Detective Rowney acknowledged that,
although the currency had been issued before the year 2000, someone could have
removed and used cash from the stockpile without replacing it with newer bills.
Lieutenant Doelle testified that officers seized approximately eight pounds of
marijuana and nearly a half ounce of cocaine from the 4571 Dugger Road property.
Officers seized approximately eighty-five pounds of marijuana from Son‟s Remuda
Circle Smyrna address. Several other items of personal property believed to have been
derived from the sale of illegal drugs were also seized from the 4571 Dugger Road
property, including vehicles and farming equipment. He testified that when the warrant
was executed on April 24, 2012, the defendant already had a felony conviction.
Proof showed that Tammy A. Tuttle worked in a non-skilled position at a medical
laboratory preparing specimens and earned between $15,000 and $17,000 annually from
2007 to 2012. Additionally, tax records indicated that Ms. Tuttle had income of $15,075
in 2007 and $15,427 in 2008. Income tax records indicated the defendant, a farmer, had a
net loss of $194 in 2007 and income of only $1613 in 2008. In 2011, the defendant had
received Social Security benefits of $5,928. The defendant and his wife had
approximately $20,000 in savings and checking accounts. Lieutenant Doelle
acknowledged that the defendant had earned some income from cutting hay, but
Lieutenant Doelle found no evidence of earned income, checks, or lottery winnings
sufficient to explain how the defendant had accumulated the more than one million
dollars found on the 4571 Dugger Road property.
Chris Hill, an employee with the Board of Probation and Parole, testified that Son
was continuously incarcerated from August 5, 2000, until his release on June 23, 2011.
Cleto Medina, who had already entered guilty pleas to his participation in the
activities giving rise to this case, testified that he had never seen the defendant nor
conducted any drug deals with the defendant. Nevertheless, Mr. Medina confirmed that,
in March and April 2012, marijuana had been transported from Alabama to Tennessee
and delivered to a man known as “Red” or “Rojo,” whom Mr. Medina identified as Son.
- 33 -
Mr. Medina stated that two deliveries were made to other locations in middle Tennessee
prior to March 16, 2012, Mr. Medina stated that his brother delivered marijuana to Son in
a maroon Ford Expedition on March 16, 2012, and that he had delivered marijuana to
Son on April 2, 2012, in his Lincoln Navigator to the 4571 Dugger Road property. Mr.
Medina stated that the marijuana was packaged in blocks, covered in axle grease, and
placed in suitcases for the deliveries. Each of the pre-March 16, 2012 deliveries
consisted of 100 pounds of marijuana, as did the delivery on March 16, 2012. However,
the April 2, 2012 delivery was supposed to consist of 170 pounds of marijuana, although
Son later informed him that the marijuana had weighed only 157 pounds.
Mr. Medina described the transaction on April 2, 2012, in which he had
participated, stating that Son had instructed him to call when he reached exit 32 off
Interstate 65. When Mr. Medina did so, Son gave him directions to a gas station ten to
fifteen minutes away. They met at the gas station, and Mr. Medina followed Son to a
wooded area on the 4571 Dugger Road property, where he delivered the marijuana to
Son. According to Mr. Medina, the marijuana was priced at $675 per pound, and Son
paid cash for the delivery, mostly in $100 bills.
Following the drug transaction, Mr. Medina returned to the Interstate via the route
he had previously taken. Mr. Medina never met with Son again, because he was arrested
two or three weeks after the April 2, 2012 drug transaction.
After his arrest, Mr. Medina viewed an aerial photograph of the 4571 Dugger
Road property and marked on it the narrow dirt road location where the transaction
occurred. Mr. Medina stated that the defendant‟s mobile home was not visible from that
location. Mr. Medina also directed Officer David Stanfield along the route Son had
driven from the gas station to the wooded area of the 4571 Dugger Road property.
B. Standards for Evaluating the Sufficiency of the Evidence
“Appellate courts evaluating the sufficiency of the convicting evidence must
determine „whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.‟” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A guilty verdict removes the
presumption of innocence and replaces it with a presumption of guilt; thus, on appeal a
defendant bears the burden of demonstrating why the evidence is insufficient to support
the conviction. Id. (citing State v. Parker, 350 S.W.3d 883, 903 (Tenn. 2011)). On
appeal, the State is afforded the strongest legitimate view of the evidence presented at
trial and any reasonable and legitimate inferences that may be drawn from the evidence.
Id. (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). “The credibility of the
witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the
proof are matters entrusted to the jury as the trier of fact.” State v. Campbell, 245 S.W.3d
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331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App.
1978)). “This Court neither re-weighs the evidence nor substitutes its inferences for those
drawn by the jury.” Wagner, 382 S.W.3d at 297 (citing Bland, 958 S.W.2d at 659)).
Circumstantial and direct evidence are reviewed under the same standards. Id. (citing
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)). Circumstantial evidence is alone
a sufficient basis to support a conviction, and circumstantial evidence need not exclude
every reasonable hypothesis except that of guilt. Id. (citing Dorantes, 331 S.W.3d at
381).
C. Application of the Legal Standards
We agree with the State that the evidence presented at trial is sufficient to support
the defendant‟s conviction of conspiracy to possess over 300 pounds of marijuana with
the intent to sell it.
The offense of conspiracy is committed if two (2) or more people, each
having the culpable mental state required for the offense that is the object of
the conspiracy, and each acting for the purpose of promoting or facilitating
commission of an offense, agree that one (1) or more of them will engage
in conduct that constitutes the offense.
Tenn. Code Ann. § 39-12-103. The relevant offense to this appeal is defined as
“knowingly . . . [p]ossess[ing] a controlled substance with intent to . . . sell the controlled
substance,” Tenn. Code Ann. § 39-17-417(a)(4), and the controlled substance is “[t]hree
hundred pounds (300 lbs.) (136,050 grams) or more of any substance containing
marijuana,” id. § 39-17-417(j)(13).
In this case, the prosecution offered both direct and circumstantial evidence
establishing that Son met with an agent of the DTO and then drove toward the 4571
Dugger Road property on which the defendant resided, with the DTO agent following
him. After the first meeting on March 16, 2012, officers observed Son‟s vehicle parked
in the defendant‟s driveway, and after the second meeting on April 2, 2012, officers
obtained a GPS ping indicating that Mr. Medina‟s phone was located on the 4571 Dugger
Road property. Mr. Medina testified at trial that he and Son had conducted the April 2,
2012 drug transaction on that property.
The prosecution also presented circumstantial evidence establishing that the
defendant was aware of Son‟s drug trafficking activity and aided him with it. For
example, officers discovered eight pounds of marijuana in the defendant‟s residence, and
it was packaged in a manner very similar to the marijuana discovered at Son‟s Remuda
Circle Smyrna address. The defendant admitted that this marijuana belonged to him,
although he denied Son had anything to do with it. Some of the marijuana had been
processed while some of it remained compressed or “bricked up.” Some of the marijuana
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had already been packaged into smaller Ziploc baggies in a manner that would facilitate
resale, and between $20,000 to $22,000 cash was discovered next to this marijuana.
Officers discovered scales and a grinder in defendant‟s residence—equipment used to
prepare and process compressed marijuana for resale to end users. Officers also located a
money-counting machine, which would have aided the defendant in keeping account of
the proceeds of drug sales. Viewed in a light most favorable to the State, we conclude
that this evidence was sufficient to support the defendant‟s conviction for conspiracy to
possess over 300 pounds of marijuana with the intent to sell it.
In concluding that the proof was insufficient to support the defendant‟s conviction,
the Court of Criminal Appeals pointed out that no witnesses had observed Son and the
defendant conspiring together and that the proof established only that Son and the
defendant both were engaged in drug trafficking, not that they were working together in
the illegal drug trade. This analysis might be appropriate were the Court of Criminal
Appeals tasked with resolving factual issues and deciding the defendant‟s guilt or
innocence in the first instance. However, those tasks are reserved for the jury, not
reviewing appellate courts. Here, the evidence is sufficient to support the jury‟s
determination that Son and the defendant were conspiring together in the marijuana drug
trafficking operation.
The proof also is sufficient to support the defendant‟s conviction for conspiracy to
commit money laundering. Money laundering is defined in pertinent part as follows:
It is an offense to knowingly use, conspire to use or attempt to use
proceeds derived directly or indirectly from a specified unlawful activity to
conduct or attempt to conduct a financial transaction or to make other
disposition with the intent to conceal or disguise the nature, location,
source, ownership or control of the criminally derived proceeds.
Tenn. Code Ann. § 39-14-903(a)(1). Here, the State offered proof to show that the
combined income of the defendant and his wife would not have accounted for the large
amounts of cash found in the defendant‟s possession. Ms. Tuttle had income of $15,000
to 17,000 per year during the relevant time, and tax records indicated that the defendant
had a loss in one year and income of $1,613 in another year. Yet, officers found $20,000
to $22,000 cash inside a jacket pocket in the master bedroom closet, next to the marijuana
and one of the electronic scales. Officers found $75,000 more in cash inside a dresser
drawer in the bedroom and located an ammunition can in the trunk of the Civic outside
containing $1,000,300 cash. The ammunition can was surrounded by semiautomatic
weapons. From this proof, the jury could have rationally concluded, beyond a reasonable
doubt, that the money, in whole or in part, derived from the drug trafficking conspiracy in
which the defendant and Son were engaged.
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IV. Forfeiture
A. Post-Trial Forfeiture Hearing Proof
The day after the jury returned its verdict, the trial court held a hearing on the
forfeiture count of the indictment. At the beginning of this hearing, the State announced
that the trial court had heard “90 percent of the proof” related to the forfeiture during the
trial, but the State elected to present two additional witnesses.
Phillip Taylor, a state investigator with the 20th Judicial District Drug Task Force,
testified about his participation in the 2000 investigation into Son‟s drug trafficking
activities, explaining that Son was stopped in February 2000, while in possession of drug
records and $30,000 cash. Son‟s wife was stopped the same day and also had $30,000
cash in her vehicle. In July 2000, law enforcement authorities linked Son to a rental truck
containing 2,600 pounds of marijuana through statements of co-conspirators and Son‟s
wife. In August 2000, law enforcement authorities also seized 2,200 pounds of marijuana
from a van in Son‟s possession, and during the arrest, seized $25,000 cash from Sonʼs
person. After officers seized the van in August 2000, they searched the defendantʼs
residence pursuant to a warrant and found an ammunition can containing a plastic bag
with $112,000 cash. Written on the outside of the bag were “C.T. $200,000.” The
ammunition can was caked with mud. Law enforcement authorities had heard that more
money was buried on the 4571 Dugger Road property, but they were unable to locate it
during the 2000 search. As a result of that investigation, however, the defendant pled
guilty to conspiracy to commit money laundering and conspiracy to sell more than
seventy pounds of marijuana. Son also pled guilty to multiple charges and was
incarcerated as a result of those convictions until June 2011.
Lieutenant Doelle testified about several items of personal property that were
seized during the April 24, 2012 search of the 4571 Dugger Road property. The trial
court had instructed him not to mention any of these seized items, all purchased before
2004, in his trial testimony. The items included a car, trucks, and two tractors.
Lieutenant Doelle acknowledged that he had no evidence that any of this property was
acquired by the defendant in violation of any statute. He also stated that smaller items of
personal property, in addition to those mentioned at trial, had been seized as well, as had
two of the defendant‟s bank accounts—one containing approximately $20,000 and the
other approximately $27,000. When questioned about monthly Social Security checks
that had been deposited into the account containing $27,000 and the defendant‟s earnings
from his hay business, Lieutenant Doelle expressed his belief that the account contained
drug proceeds comingled with legitimate monies, but he was not able to track any drug
funds to that account. Although he believed all of the personal property officers seized
had been purchased or maintained with proceeds from the sale of illegal drugs, he was
unable to identify any specific drug transactions from which the proceeds derived. He
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described the ammunition can found in the Civic as covered in dirt and appearing to have
been buried in the ground, much like the ammunition can officers seized in 2000.
Lieutenant Doelle conceded that he did not know when the defendant acquired or
received the cash, nor did he know of any specific drug transactions that resulted in the
defendant acquiring the currency. However, he stated that the defendant had not acquired
the cash found in the Civic within the last five years, although it appeared the defendant
had placed the ammunition can in the Civic during that time so he could more readily
access the money. While he acknowledged that the money found in the Civic was
comprised entirely of bills issued before the year 2000, he was unsure whether the money
found inside the defendant‟s residence was also comprised of currency issued before
2000. Lieutenant Doelle opined that it would take an entire lifetime to save $1,000,000
from social security or farming revenue, even for a person with no expenses.
B. Court Action
The trial court denied forfeiture of “all personal property acquired before 2007”
and the money seized from the defendant‟s bank accounts but ordered forfeiture of all
other personal property, including the $1,098,050 cash discovered on the 4571 Dugger
Road property. The trial court found that the items were “directly or indirectly, acquired
by or received in violation of the drug statutes [and] subject to judicial forfeiture.”
The Court of Criminal Appeals unanimously affirmed the trial court‟s ruling
directing forfeiture of the $1,098,050 cash. The intermediate appellate court concluded
that the defendant‟s 2002 guilty pleas to conspiracy to commit money laundering and
possession of drugs with intent to distribute supported the forfeiture. Although the Court
of Criminal Appeals acknowledged that the seizure had not occurred within five years of
the termination of the conduct on which the defendant‟s 2002 guilty pleas were based, it
concluded that the defendant‟s concealment of the money tolled the five-year forfeiture
statute of limitations.
C. Analysis
The defendant challenges the Court of Criminal Appeals‟ decision affirming the
trial court‟s order of forfeiture of the $1,098,050 cash found on the 4571 Dugger Road
property. He argues that the forfeiture of this cash was barred by the five-year statute of
limitations contained in the forfeiture statute, Tenn. Code Ann. § 39-11-708(d) (2010),
and also by the State‟s failure to provide him with notice of the seizure on the day of the
seizure.
The defendant raised these arguments in a pretrial motion to dismiss the forfeiture
count of the indictment and during the post-trial forfeiture hearing. The trial court
acknowledged that the proof was “undisputed that the bills seized . . . were minted prior
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to 2000,” but stated, when ruling on the pretrial motion to dismiss, that “since the money
had been dug up after so long, it is reasonable that money was either used, or going to be
used, in furtherance of the now on-going drug operation.” In response to these arguments
at the post-trial forfeiture hearing, the trial court ruled that the cash had been “directly or
indirectly[] acquired by or received in violation of the drug statutes” and was “subject to
judicial forfeiture.” Additionally, the trial court found that, although the defendant was
not provided a notice of seizure on the day of the seizure, the notice later provided by
certified mail satisfied “the requirement under [Tennessee Code Annotated section 39-11-
707(b)] that „the seizing agency or official shall cause to be delivered . . . notice of
seizure to the . . . owner.‟”
By the time the Court of Criminal Appeals addressed the defendant‟s challenges to
the trial court‟s forfeiture order, it had set aside the defendant‟s conspiracy convictions.
The intermediate appellate court noted that, “none of the [defendant‟s] remaining
convictions . . . appear to qualify as convictions from which criminal proceeds are subject
to forfeiture” and commented that, were it “concerned merely with the [defendant‟s]
[remaining] current offenses as predicates for forfeiture, [it] would vacate the forfeiture
order.” However, the Court of Criminal Appeals concluded that the defendant‟s 2002
convictions could serve as predicates for the 2012 forfeiture, despite the five-year statute
of limitations, because the cash had derived from the activities for which the defendant
was convicted in 2002, and the defendant‟s “concealment of the proceeds from his 2002
conspiracy convictions tolled the applicable limitations period.” To reach this
conclusion, the Court of Criminal Appeals, as a matter of first impression, adopted and
applied the doctrine of equitable tolling to the five-year forfeiture statute of limitations,
even though it contains no tolling provision.
In this Court, the defendant challenges the Court of Criminal Appeals‟ adoption
and application of the doctrine of equitable tolling to uphold the forfeiture. The State, in
response, urges this Court to uphold in all respects the Court of Criminal Appeals‟
decision. However, having already reinstated the defendant‟s conspiracy convictions, we
deem it unnecessary to address these arguments. As explained below, we agree with the
trial court that the State satisfied its burden of establishing by a preponderance of the
evidence that the cash was subject to forfeiture based on the defendant‟s conspiracy
convictions arising from the 2012 drug trafficking activities. We also agree with the
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courts below that the notice of seizure provided the defendant by certified mail satisfied
statutory requirements.13
“Forfeiture is defined as „[t]he divestiture of property without compensation.‟”
State v. Sprunger, 458 S.W.3d 482, 492 (Tenn. 2015) (quoting Black‟s Law Dictionary
722 (9th ed. 2009) (Forfeiture)). Here, as in many cases, forfeiture proceedings are
instituted along with criminal charges. Id. But forfeiture proceedings are not criminal in
nature and are instead in rem actions—actions regarding the seized property for which
forfeiture is sought. Id. Although forfeiture actions often proceed “parallel to criminal
prosecutions and are „based upon the same underlying events,‟ they are civil in nature.”
Id. (quoting United States v. Ursery, 518 U.S. 267, 274 (1996)). As a result, “[t]he State
has a less onerous burden—that of proving only by a preponderance of the evidence that
the property is subject to forfeiture.” Stuart v. State Dep‟t of Safety, 963 S.W.2d 28, 33
(Tenn. 1998). The forfeiture statutes at issue in this appeal expressly provide for this
lesser burden of proof. See Tenn. Code Ann. § 39-11-708(d) (“The state shall establish
by a preponderance of the evidence that the property is subject to forfeiture under this
part.”). Additionally, because the trial judge decided this forfeiture action without the
intervention of a jury, we review the trial court‟s findings of fact “de novo upon the
record of the trial court, accompanied by a presumption of the correctness of the finding,
unless the preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d); see also
Sprunger, 458 S.W.3d at 498 n.26. Legal conclusions are reviewed de novo with no
presumption of correctness. Sprunger, 458 S.W.3d at 498. We note as well that, although
the trial court held a post-trial forfeiture hearing, in determining whether the State
satisfied its burden of proving the property was subject to forfeiture, the trial court was
entitled to consider all “evidence already in the record.” Tenn. Code Ann. § 39-11-
708(d).
Forfeitures are generally disfavored by the law and policy of Tennessee, so courts
typically strictly construe forfeiture statutes. Sprunger, 458 S.W.3d at 494. As for the
forfeiture statutes at issue in this appeal, “[i]t is the intent of the [G]eneral [A]ssembly,
consistent with due process of law, that all property acquired and accumulated as a result
of criminal offenses be forfeited to the [S]tate, and that the proceeds be used to fund
13
The defendant has also argued in this Court that the forfeiture count of the indictment failed to
provide him with adequate notice of the grounds for forfeiture. However, this issue was not raised in the
courts below and is therefore waived. Bishop, 431 S.W.3d at 43.
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further law enforcement efforts in this [S]tate.” Tenn. Code Ann. § 39-11-701(b). To
effectuate this intent, the General Assembly has declared that
[a]ny property, real or personal, directly or indirectly acquired by or
received in violation of any statute or as an inducement to violate any
statute, or any property traceable to the proceeds from the violation is
subject to judicial forfeiture, and all right, title, and interest in any such
property shall vest in the state upon commission of the act giving rise to
forfeiture.
Tenn. Code Ann. § 39-11-703(a). Furthermore, “any property used as an instrumentality
in or used in furtherance of” certain criminal offenses, including “[a] conviction for a
violation of § 39-17-417(i) or (j),” “shall be subject to judicial forfeiture.” Tenn. Code
Ann. § 39-11-703(b). In turn, Tennessee Code Annotated section 39-17-417(a) provides,
in relevant part, that it is an offense to deliver a controlled substance, sell a controlled
substance, or possess a controlled substance with the intent to deliver or sell it. Tenn.
Code Ann. § 39-17-417(a)(1)-(4). Marijuana is specifically listed as a controlled
substance. Id. § -417(i)(13), (j)(13). In the indictment at issue here, the State alleged that
the defendant‟s property was subject to forfeiture because it was directly or indirectly
acquired by a violation of either Tennessee Code Annotated section 39-17-417,
possession of a controlled substance with intent to sell it, or Tennessee Code Annotated
section 39-14-903, money laundering.
We agree with the trial court that the State satisfied its burden of proving by a
preponderance of the evidence that the defendant‟s seized cash was being “used in
furtherance” of the drug trafficking operation spearheaded by Son and Mr. Medina in the
spring of 2012, and “directly or indirectly acquired by or received” in violation of
statutory drug offenses. The proof in the record establishes that some of the seized cash
was found in the defendant‟s bedroom, near marijuana and an electronic scale.
Additionally, the proof showed that Son was released from prison on June 23, 2011, and
by no later than March 2012, Son was spearheading a major marijuana trafficking
operation involving hundreds of pounds of the illegal drug. Mr. Medina testified that Son
paid $675 per pound for the marijuana, used cash to pay, and paid mostly in $100 bills.
The $1,000,300 found in the trunk of the Civic was in $100 bills. Mr. Medina testified
that he and Son conducted their drug deals on the property where this cash was located.
It is true, as the defendant points out, that the condition of the ammunition can, the
issuance dates of the currency, and the condition of the rubber bands binding the currency
all indicated that the money had been buried for an extended period of time prior to its
seizure. However, the defendant admitted that he had placed the money in the Civic in
2011, only one year before its seizure and the same year Son was released from prison.
Considered together, the proof in the record supports and does not preponderate against
the trial court‟s finding that the State satisfied its burden of proving that the money was
subject to forfeiture because it was acquired directly or indirectly in violation of statutes
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or was being used in furtherance of the 2012 drug trafficking conspiracy, for which the
defendant was convicted. As a result, the forfeiture action is not barred by the five-year
statute of limitations, as the defendant contends, because it was charged within five years
of the termination of the 2012 conduct—“the conduct giving rise to forfeiture.” Tenn.
Code Ann. § 39-11-708(d).
We also agree with the trial court and the Court of Criminal Appeals that the
notice of seizure provided the defendant by certified mail complied with the forfeiture
statute. Tennessee Code Annotated section 39-11-707(b) provides, in pertinent part, that
[u]pon seizure of property for forfeiture under this part, the seizing agency
or official shall cause to be delivered a written receipt and notice of seizure
to the . . . owner . . . . The notice shall list and describe generally the
property seized, the agency or official responsible for the seizure and shall
state the procedure for obtaining return of the property. . . .
Tenn. Code Ann. § 39-11-707(b).
The defendant argues that the words “upon seizure of property” require the State
to deliver the notice of seizure on the same day the seizure occurs. We disagree. As the
State points out, the statute contains no language mandating same-day delivery of the
notice of seizure. If the General Assembly had intended to impose a same-day delivery
requirement, it could have done so expressly. Indeed, a temporal deadline is expressly
provided in the very next subsection of this statutory provision. See Tenn. Code Ann. §
39-11-707(c) (“Upon the seizure of personal property for forfeiture, the seizing agency
shall within five (5) working days, apply ex parte for a forfeiture warrant from a judge
authorized to issue a search warrant.”).
We reaffirm the importance of providing adequate notice of a pending forfeiture to
those with an interest in the property subject to forfeiture. Redd v. Tennessee Dep‟t of
Safety, 895 S.W.2d 332, 335 (Tenn. 1995) (“One of the essential elements of due process
in the confiscation and forfeiture of private property is adequate notice to all interested
parties.”). We also reiterate that the State bears the burden of proving by a
preponderance of the evidence that it complied with the procedural and substantive
requirements established by forfeiture statutes. Sprunger, 458 S.W.3d at 499-500. We
simply conclude, as did the trial court and the Court of Criminal Appeals, that the State
satisfied its burden in this case. The forfeiture statute at issue here does not mandate
same-day delivery of the notice of seizure. The defendant has never claimed that he did
not receive the notice of seizure sent by certified mail, and this record demonstrates that
the defendant had sufficient time, with the assistance of counsel, to contest the forfeiture,
beginning with a pretrial motion to dismiss the forfeiture count of the indictment and
continuing through the post-trial forfeiture hearing. Furthermore, here officers could not
have delivered a notice on the day of the seizure listing and describing the property
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seized as section 39-11-707(b) requires, because officers needed the assistance of a bank
to obtain an accurate count of the large amount of cash that was seized, and the bank had
closed for the day.
For all these reasons, we agree with the trial court and the Court of Criminal
Appeals that the State complied with the procedural and substantive requirements of the
applicable forfeiture statutes when it delivered the notice of seizure by certified mail after
obtaining an accurate count of the cash that had been seized rather than on the day of
seizure.14
V. Conclusion
Based upon the foregoing analyses, we reverse the portion of the Court of
Criminal Appeals‟s decision invalidating the search warrant and vacating the defendant‟s
convictions but affirm, on different grounds, the intermediate appellate court‟s decision
upholding the forfeiture order. We otherwise affirm and reinstate in all respects the
judgment of the trial court. Costs of this appeal are taxed to the defendant, Jerry Lewis
Tuttle, for which execution may issue if necessary.
_____________________________________
CORNELIA A. CLARK, JUSTICE
14
The officer did not accurately list the date the notice was provided, but as the courts below
concluded, the record indicates that this was at most an honest mistake and in no way impeded the
defendant‟s ability to contest the forfeiture.
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