State of Tennessee v. Barry Leon Ferguson

02/26/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
September 6, 2017 Session
STATE OF TENNESSEE v. BARRY LEON FERGUSON
Appeal from the Circuit Court for Dyer County
No. 15-CR-77 R. Lee Moore, Jr., Judge
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No. W2017-00113-CCA-R3-CD
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The Appellant, Barry Leon Ferguson, pled guilty in the Dyer County Circuit Court to
possession of cocaine with intent to sell or deliver, possession of methamphetamine with
intent to sell or deliver, possession of oxycodone with intent to sell or deliver, and
possession of marijuana with intent to sell or deliver and reserved a certified question of
law concerning the sufficiency of the affidavit underlying the search warrant issued in
this case. Based upon the oral arguments, the record, and the parties’ briefs, we affirm
the trial court’s denial of the motion to suppress.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and J. ROSS DYER, J., joined.
Martin L. Howie, Dyersburg, Tennessee, for the appellant, Barry Leon Ferguson.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
C. Phillip Bivens, District Attorney General; and Charles Dyer and Karen W. Burns,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
This case relates to a search of the Appellant’s home on November 3, 2014. On
October 30, 2014, Investigator Stoney Hughes of the Dyer County Sheriff’s Office
submitted an affidavit in which he listed the following as the factual basis supporting
probable cause for issuance of a search warrant for the residence:
1. That the sale of illegal drugs generates large amounts of cash. Drug
traffickers typically utilize this to purchase assets of all types
including, but not limited to, vehicles, jewelry and real estate.
....
2. The Confidential Source, hereafter referred to as CS, has contacted
the affiant and Lt. Ken Simpson concerning suspect Barry Ferguson
“AKA Slow” selling cocaine, and cocaine base from his residence at
743 Newbern Roellen Rd.. A Criminal History query reveals that
Barry Ferguson has a conviction in Federal Court for sale of cocaine
on 06-24-96[.]
3. A vehicle registration query revealed that Barry Ferguson has a
black 1998 Pontiac currently registered to him at the address of 743
Newbern Roellen Rd. Dyersburg, TN with an expiration date of
03/31/15.
4. Within the past 72 hours, the CS has met with Lt. Ken Simpson, and
the affiant for the purpose of conducting a controlled buy at Barry
Ferguson’s address at 743 Newbern Roellen Rd. from Barry
Ferguson. The CS [h]ad made an agreement to purchase cocaine
base. Lt. Simpson and the affiant searched the CS prior to the
purchase and transported the CS to Newbern Roellen Rd. The CS
went to the front door of Barry Ferguson’s Residence, where Mr.
Ferguson came to the door from inside to make the exchange. The
CS returned with a white rock like substance that field tested
positive for cocaine.
5. Residence to Wit: 743 Newbern Roellen Rd, Dyersburg, Tennessee,
38024. The involved residence is a single story, single family
dwelling, with blue siding, a full length front porch with brown trim
and support posts at the corners, a white metal roof, sitting on the
west side Of Newbern Roellen Rd., facing east, with a black mailbox
numbered 743 located on the road side of the property, and being the
residence of Barry Leon Ferguson[.]
6. Your Affiant requests a search warrant for the residence of 743
Newbern Roellen Rd, Dyersburg, Tennessee, 38024, and all persons,
vehicles and curtilage located at this residence for firearms, cocaine,
cocaine base, clandestine cocaine base manufacturing equipment,
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drug paraphernalia, U.S. Currency, receipts, books, ledgers, notes,
computerized and hand written records and all other material
evidence of violations of T.C.A. 39-17-417, T.C.A. 39-17-1307,
T.C.A. 39-17-1308 and 39-17-1324.
Based on the information contained in the affidavit, Chancellor Tony Childress granted
Investigator Hughes’s request for a search warrant. During the search, police officers
found cocaine, methamphetamine, oxycodone, and marijuana.
At the Appellant’s preliminary hearing, Investigator Hughes testified that prior to
obtaining the search warrant, he and Lieutenant Simpson met with the CS and verified
that the Appellant lived at the home on Newbern Roellen Road. The Appellant was not
present when the police arrived to execute the warrant, so the officers “breach[ed]” the
door. During the search, they found four white rock-like objects believed to be crack
cocaine, four individually-wrapped plastic bags containing a clear crystal-like substance
believed to be methamphetamine, two prescription pill bottles containing oxycodone, and
seventeen bags of marijuana that appeared to have been packaged for resell. They also
found drug paraphernalia, plastic sandwich bags, and digital scales. Investigator Hughes
said they found most of the evidence in the kitchen area.
On cross-examination, Investigator Hughes testified that the CS contacted him and
told him that “Barry Ferguson sells crack cocaine and just cocaine.” Defense counsel
asked how the CS knew cocaine was being sold from the Appellant’s residence, and
Investigator Hughes answered, “I believe the source had purchased from Mr. Ferguson
before.” Investigator Hughes had never used the CS as an informant prior to this case
and did not know if the CS was reliable, so he set up a controlled drug-buy between the
CS and the Appellant. He acknowledged that the CS was a drug user and was not a
citizen informant.
Investigator Hughes testified that on the day of the drug-buy, he transported the
CS to Newbern Roellen Road and “dropped off” the CS south, but “within a mile” of, the
Appellant’s home. Investigator Hughes was in a vehicle north of the residence and was
“pulled over” onto a “field road.” He said the CS was not being monitored with video- or
audio-recording equipment because “we maintained visual surveillance all the way to the
residence and from the residence.” However, Investigator Hughes lost visual contact
with the CS when the CS “entered the front porch.” The CS had twenty dollars for the
buy, and the CS bought “one rock” of crack cocaine from the Appellant.
At the conclusion of the hearing, the Dyer County General Sessions Court bound
over five drug-related charges to the grand jury. In June 2015, the Dyer County Grand
Jury indicted the Appellant for possession of one-half gram or more of cocaine with
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intent to sell or deliver, a Class B felony; possession of one-half gram or more of
methamphetamine with intent to sell or deliver, a Class B felony; possession of
oxycodone with intent to sell or deliver, a Class C felony; and possession or more than
one-half ounce of marijuana with intent to sell or deliver, a Class E felony.
The Appellant filed a motion to suppress the evidence obtained during the search
on the basis that Investigator Hughes’s affidavit failed to establish probable cause for the
search warrant. In support of his motion, the Appellant noted that Investigator Hughes
failed to state in the affidavit that the CS had provided information about other drug
transactions previously or had any knowledge of drug trafficking. The Appellant further
noted that Investigator Hughes testified at the preliminary hearing that he did not know if
the CS was reliable. The Appellant argued that although Investigator Hughes arranged a
controlled drug-buy in order to determine the CS’s reliability, Investigator Hughes
testified at the preliminary hearing that he dropped off the CS within a mile south of the
Appellant’s house and pulled into a field road north of the residence to observe the buy.
The Appellant then stated, “Proof introduced at the suppression hearing in this matter will
confirm that within a mile south of Defendant’s residence on Newbern-Roellen Road,
and between the intersection of Newbern-Roellen Road and State Highway 104 and
Defendant’s residence, there are twenty-three (23) residences and four (4) hills with deep
troughs between the crests of the hills.”
At the suppression hearing, Investigator Hughes testified for the State that he had
never met the CS or obtained information from the CS prior to this case and, therefore,
set up the controlled drug-buy between the CS and the Appellant. Before the buy,
Investigator Hughes searched the CS for illegal substances and gave the CS money to
purchase cocaine. Investigator Hughes and Lieutenant Simpson “dropped the
confidential source off just - just before Mr. Ferguson’s residence and followed the
source by vehicle [up to the residence].” The officers then drove past the Appellant’s
house and parked on a field road where they could maintain visual surveillance of the CS.
The Appellant’s front porch was covered by a dark screen, so the officers lost visual
contact of the CS when the CS entered the front porch area. The CS exited the
Appellant’s residence two to five minutes later, and the officers maintained visual
surveillance of the CS from the time the CS left the residence until the officers made
contact with the CS “just down the road.”
Investigator Hughes testified that he and Lieutenant Simpson picked up the CS
and that the CS gave them a small package containing a rock-like substance. The
substance field-tested positive for cocaine. Investigator Hughes searched the CS but did
not find any drugs or money on the CS’s person. He submitted an affidavit in support of
a search warrant to Chancellor Childress, and Chancellor Childress signed the warrant.
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On cross-examination, Investigator Hughes testified that he had never spoken with
the CS and that he did not know whether the CS had given information to law
enforcement prior to this case. Defense counsel asked if Investigator Hughes considered
the CS unreliable prior to this drug buy, and he answered, “I would not say unreliable,
just I could not confirm the source’s reliability at that point.” To confirm the CS’s
reliability, Investigator Hughes arranged for the CS to buy drugs from the Appellant. He
said he usually did not use audio- or video-recording equipment during such buys.
Investigator Hughes testified that on the day of the drug-buy, he dropped off the
CS on Newbern Roellen Road and that the CS was south of the Appellant’s residence but
north of the intersection with Highway 104. He acknowledged testifying at the
preliminary hearing that he dropped off the CS “within a mile” of the Appellant’s house.
He said that when the CS arrived at the Appellant’s home, the officers drove past the
house and parked “just north.” The officers maintained visual surveillance of the CS
until the CS entered the front porch area. Investigator Hughes estimated that he picked
up the CS fifteen to twenty minutes after he dropped off the CS and said that the CS did
not indicate drugs or other people were in the home.
Milly Worley testified for the Appellant that she and defense counsel shared office
space and that she sometimes did investigative work for counsel. Relevant to this case,
Worley “shot” video of Newbern Roellen Road. She described the video as “down from
104 turning onto Newbern-RoEllen and down to what, I believe, to be Barry - Barry’s
house and just past that a little bit and then back.” Defense counsel played the video for
the trial court and introduced the video into evidence. Defense counsel questioned
Worley during the video, and she noted that a driver “topped” four hills between
Highway 104 and the Appellant’s home. She described the area as “very up and down”
and said she counted twenty-three houses between the highway and the Appellant’s
house. She said that the area north of the Appellant’s residence was “very flat” but that
“there were big evergreen trees, some type of cedar tree, and you could not see [the
house] until you were right there on it.”
On rebuttal for the State, Investigator Hughes maintained that he kept visual
surveillance of the CS “until the source entered the front porch area.” On cross-
examination, defense counsel asked, “How could you see over those hills?” Investigator
Hughes said he and Lieutenant Simpson kept visual surveillance of the CS from the drop-
off location to the Appellant’s house by following the CS in their car. After the CS
entered the Appellant’s house, the officers “pulled in and we could still maintain visual
surveillance of the front of the residence.” Investigator Hughes was adamant that he
could see the Appellant’s front porch from where the officers were parked on the field
road.
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The trial court ruled that “[h]ad it not been for the controlled buy,” the court would
have agreed with the Appellant that the affidavit failed to establish probable cause
because the affidavit did not establish “the two prongs.” However, the court concluded
that the controlled drug-buy “corrects that situation” and “does create the probable cause
necessary.” The trial court said it understood the Appellant’s claim that the officers
could not maintain visual surveillance but accredited Investigator Hughes’s testimony
that the officers followed the CS until the CS went onto the porch, that the officers drove
past the Appellant’s house, and that they maintained visual surveillance of the home until
the CS came outside. The court concluded that “[w]ith the other information from the
controlled buy of searching the informant both before and afterwards and . . . the rock
like substance that field tested positive for cocaine,” the affidavit established probable
cause for issuance of the search warrant. Accordingly, the court denied the Appellant’s
motion to suppress.
The Appellant pled nolo contendere to the four indicted offenses in exchange for
an effective ten-year sentence.1 Pursuant to the plea agreement, the Appellant reserved
the following certified question of law: “whether probable cause existed for the issuance
of the search warrant ultimately leading to Defendant’s arrest; specifically, whether there
was sufficient police corroboration to cure the defect of the unreliability of the
confidential source.” On appeal, the Appellant contends that the affidavit failed to
establish the “basis of knowledge” and “veracity” prongs of the Aguillar-Spinelli test and
that the controlled drug-buy failed to cure the defects in the affidavit because Investigator
Hughes did not conduct any prior surveillance of the home for drug activity, did not use
video- or audio-recording equipment during the buy, lost sight of the CS when the CS
entered the front porch area, never saw the Appellant during the drug-buy, and did not
receive any information as to whether the CS saw drugs or other persons in the home.
The Appellant also contends that Investigator Hughes’s testimony that he was able to
maintain surveillance of the CS was “incredulous when the video admitted into evidence
at the suppression hearing is viewed.”
II. Analysis
Initially, the State contends that we do not have jurisdiction to review the
certified question because the Appellant failed to reserve the certified question properly.
Specifically, the State argues that the certified question is not “narrowly tailored” in that
the question challenges whether the four corners of the affidavit established probable
cause to issue the search warrant whereas the crux of the Appellant’s argument at the
suppression hearing and on appeal relates to Investigator Hughes’s credibility.
1
The transcript of the plea hearing is not in the appellate record.
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Tennessee Rule of Criminal Procedure 37(b)(2)(A) provides that a certified
question may be reserved when:
(A) the defendant entered into a plea agreement under Rule 11(c) but
explicitly reserved-with the consent of the state and of the court-the right to
appeal a certified question of law that is dispositive of the case, and the
following requirements are met:
(i) the judgment of conviction or order reserving the
certified question that is filed before the notice of appeal is
filed contains a statement of the certified question of law that
the defendant reserved for appellate review;
(ii) the question of law as stated in the judgment or
order reserving the certified question identifies clearly the
scope and limits of the legal issue reserved;
(iii) the judgment or order reserving the certified
question reflects that the certified question was expressly
reserved with the consent of the state and the trial court; and
(iv) the judgment or order reserving the certified
question reflects that the defendant, the state, and the trial
court are of the opinion that the certified question is
dispositive of the case.
As noted by the State, our supreme court has said that
the question of law must be stated so as to clearly identify the scope and the
limits of the legal issue reserved. For example, where questions of law
involve the validity of searches and the admissibility of statements and
confessions, etc., the reasons relied upon by defendant in the trial court at
the suppression hearing must be identified in the statement of the certified
question of law and review by the appellate courts will be limited to those
passed upon by the trial judge and stated in the certified question, absent a
constitutional requirement otherwise.
State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1998); see also State v. Pendergrass, 937
S.W.2d 834, 836 (Tenn. 1996). It is the defendant’s burden to ensure compliance with
the requirements of Rule 37(b). See Pendergrass, 937 S.W.2d. at 838.
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At oral argument, the State claimed that the only issue challenged in the motion to
suppress and at the suppression hearing was Investigator Hughes’s truthfulness that he
maintained visual surveillance of the CS. We disagree. The Appellant also argued in the
motion and at the hearing that the affidavit failed to establish probable cause for issuance
of the warrant because the affidavit failed to establish the CS’s reliability. Granted,
defense counsel spent considerable time at the suppression hearing challenging
Investigator Hughes’s ability to maintain visual contact of the CS. However, defense
counsel also questioned Investigator Hughes about the CS’s reliability and gave an
extensive opening statement as to why the controlled drug-buy did not cure the CS’s
unreliability in the affidavit. In denying the motion, the trial court found that while “the
two prongs were not met” in the affidavit, the controlled drug-buy cured the deficiencies.
The Appellant’s certified question asks whether probable cause existed for issuance of
the search warrant and “specifically, whether there was sufficient police corroboration to
cure the defect of the unreliability of the confidential source.” Therefore, we have
jurisdiction to review the certified question.
That said, “[n]o issue beyond the scope of the certified question will be
considered.” Preston, 759 S.W.2d at 650. Accordingly, our review is limited to whether
the four corners of the affidavit contained sufficient police corroboration to cure the CS’s
unreliability.
In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings
of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” Id. Nevertheless, appellate courts will review both questions of law and the
trial court’s application of law to the facts purely de novo. See State v. Hanning, 296
S.W.3d 44, 48 (Tenn. 2009); State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).
Furthermore, the State, as the prevailing party, is “entitled to the strongest legitimate
view of the evidence adduced at the suppression hearing as well as all reasonable and
legitimate inferences that may be drawn from that evidence.” Odom, 928 S.W.2d at 23.
Our supreme court has explained that
[t]he Fourth Amendment to the United States Constitution requires that
search warrants issue only “upon probable cause, supported by Oath or
affirmation.” Article I, Section 7 of the Tennessee Constitution precludes
the issuance of warrants except upon “evidence of the fact committed.”
Therefore, under both the federal and state constitutions, no warrant is to be
issued except upon probable cause. Probable cause has been defined as a
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reasonable ground for suspicion, supported by circumstances indicative of
an illegal act.
State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998) (footnote and citations omitted).
“[A] finding of probable cause supporting issuance of a search warrant must be based
upon evidence included in a written and sworn affidavit.” Id. In examining the affidavit,
this court’s standard of review is limited to whether the issuing magistrate had “‘a
substantial basis for concluding that a search warrant would uncover evidence of
wrongdoing.’” State v. Tuttle, 515 S.W.3d 282, 299 (Tenn. 2017 (quoting State v.
Jacumin, 778 S.W.2d 430, 432 (Tenn. 1989)). We note that “‘affidavits must be looked
at and read in a commonsense and practical manner’, and . . . the finding of probable
cause by the issuing magistrate is entitled to great deference.” State v. Bryan, 769
S.W.2d 208, 211 (Tenn. 1989) (quoting State v. Melson, 638 S.W.2d 342, 357 (Tenn.
1982)).
At the time of the Appellant’s suppression and plea hearings, our supreme court
had espoused the two-pronged Aguilar-Spinelli test “as the standard by which probable
cause will be measured to see if the issuance of a search warrant is proper under Article I,
Section 7 of the Tennessee Constitution.” Jacumin, 778 S.W.2d at 436; see Spinelli v.
United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964). The two-
pronged Aguillar-Spinelli test was required if the hearsay information was being supplied
by a criminal informant or a person from a “criminal milieu.” State v. Smotherman, 201
S.W.3d 657, 662 (Tenn. 2006). Specifically, “hearsay information supplied by a
confidential informant [could] not support a finding of probable cause unless it also
contain[ed] factual information concerning the informant’s basis of knowledge and
credibility.” Henning, 975 S.W.2d at 294-95 (citing Jacumin, 778 S.W.2d at 432, 436).
This court has explained that “under the . . . ‘basis of knowledge’ prong, facts
must be revealed which permit the magistrate to determine whether the informant had a
basis for his information or claim regarding criminal conduct.” State v. Lowe, 949
S.W.2d 300, 304 (Tenn. Crim. App. 1996); see also State v. Moon, 841 S.W.2d 336, 338
(Tenn. Crim. App. 1992). The reliability, veracity, or credibility prong deals with the
truthfulness of the informant in which “facts must be revealed which permit the
magistrate to determine either the inherent credibility of the informant or the reliability of
his information on the particular occasion.” Moon, 841 S.W.2d at 338. Courts have
stressed that conclusory statements absent supportive detail will not suffice to establish
these requirements. See id. at 339. However, “independent police corroboration of the
information provided by the informant may make up deficiencies in either prong.” State
v. Powell, 53 S.W.3d 258, 263 (Tenn. Crim. App. 2000). “The requisite volume or detail
of information needed to establish the informant’s credibility is not particularly great.”
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Lowe, 949 S.W.2d at 305. Nevertheless, “the affiant must provide some concrete reason
why the magistrate should believe the informant.” Id.
One month before the Appellant filed his appellate brief, our supreme court
announced that it was abandoning the “rigid” Aguillar-Spinelli test adopted in Jacumin
and adopting a totality-of-the-circumstances analysis for determining whether an affidavit
establishes probable cause for issuance of a search warrant. Tuttle, 515 S.W.3d at 307-
08. However, in doing so, our supreme court did not take the informant’s basis of
knowledge and veracity “out of the equation.” As the court explained,
We reiterate that, under the 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.”
Id. (quoting Illinois v. Gates, 462 U.S. 213, 230 (1983)).
Turning to the instant case, Investigator Hughes stated in the affidavit that the CS
contacted him and accused the Appellant of selling cocaine from the Appellant’s home at
743 Newbern Roellen Road. The affidavit did not provide any basis of knowledge for the
CS’s information. However, although not mentioned by the trial court in its ruling at the
suppression hearing, Investigator Hughes stated in the affidavit that he confirmed the
Appellant lived at the residence by searching vehicle registration records and finding a
car registered to the Appellant at that address. Such verification supported the CS’s
credibility. The affidavit then described a controlled drug-buy in which the CS went to
the Appellant’s front door, the Appellant came to the door to make the exchange, and the
CS returned to the officers with a white rock-like substance that field-tested positive for
cocaine. Thus, we conclude that while the CS’s information in the affidavit may have
failed the Aguilar-Spinelli test, sufficient police corroboration existed in the affidavit to
cure the CS’s unreliability.
III. Conclusion
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Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
trial court’s denial of the motion to suppress.
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NORMA MCGEE OGLE, JUDGE
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