State v. William Haithcote

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY 1998 SESSION
October 19, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9707-CC-00260
Appellee, )
) Bedford County
V. )
) Honorable W illiam Charles Lee, Judge
)
WILLIAM JOEL HAITHCOTE, II, ) (Possession of Cocaine for Resale)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
John H. Norton, III John Knox Walkup
Norton & Smith Attorney General & Reporter
One on the Square
Shelbyville, TN 37160 Timothy Behan
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
William Michael McCown
District Attorney General
Robert G. Crigler
Assistant District Attorney General
One Public Square, Suite 101
Shelbyville, TN 37160
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
In August 1996, William Joel Haithcote II, was indicted for possession of
cocaine with intent to sell, the manufacture of “crack” cocaine, possession of
marijuana, and possession of drug paraphernalia. The trial court denied the
appellant’s motion to suppress evidence seized from his home pursuant to a
search warrant. The appellant pled guilty to possession of cocaine with intent to
sell; the state dismissed the other charges. Pursuant to Tennessee Rule of
Criminal Procedure 37(b)(2)(I), the appellant certified the question of the validity
of the search warrant to this Court. The appellant states the issue for our review
as follows: whether the affidavit submitted in support of the search warrant
demonstrates that Officer Wilkerson had a reasonable basis for believing that
crack cocaine was being prepared in the appellant’s kitchen. The judgment of
the trial court is affirmed.
On February 26, 1996, Officer James W ilkerson and Detective Nick
Worthington of the Shelbyville Police Department went with Deputy Jimmy
Parker of the Bedford County Sheriff’s Department to the appellant’s residence
to assist Deputy Parker in serving an arrest warrant on the appellant for assault.
Before Deputy Parker executed the arrest warrant, Officer Wilkerson and
Detective Worthington positioned themselves at the rear of the residence to
prevent the appellant from fleeing out the back door. While doing so, Officer
Wilkerson saw Bill Rex Adams in the house repeatedly dividing a white powder
substance into smaller stacks. Adams then placed the plate of white powder
stacks into the microwave. Detective Worthington also observed this activity.
Officer Wilkerson asked Detective Worthington what the individual was doing.
Detective Worthington said that they were processing cocaine into “crack.”
Detective Worthington has extensive training and experience in drug
enforcement. Officer Wilkerson knew that Adams had been involved in prior
illegal narcotics activities.
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In the meantime, Deputy Parker had placed the appellant in custody.
The appellant had wisely gone quickly and quietly with Deputy Parker when
Parker executed the arrest warrant. Officer W ilkerson and Detective
Worthington were left at the scene having observed what they believed to be
criminal activity. They decided to get a search warrant, apparently because they
thought that Adams had firearms in his possession. Officer Wilkerson left to get
the warrant. Detective Worthington stayed at the house to make further
observations and to prevent anyone from leaving the house. Shortly thereafter,
Adams and two males emerged from the house and got into a Chevrolet Blazer.
Detective Worthington approached the vehicle and asked them to stop. Adams
attempted to flee in the vehicle, running into Detective Worthington’s leg with the
door of the vehicle. Detective Worthington fired his weapon into the vehicle,
striking Adams in the back.
Meanwhile, Officer Wilkerson went to the police station to draft the
application for the search warrant. The affidavit given by Officer W ilkerson in
support of the warrant provides in pertinent part:
3. Immediately prior to the said Jimmy Parker knocking on the
front door of the said location to attempt to serve said arrest
warrant, Detective Nick Worthington and I took up a position at
the back door of said residence in order to prevent the subject
of the arrest warrant from fleeing from the back door.
4. While I was assisting in securing the rear portion of the
residence there was an individual in said residence known to
me as Bill Rex Adams, in said residence, repeatedly dividing
a white powder substance that I believed to be cocaine, into
smaller separate stacks and once the said, Bill Rex Adams,
had divided the white powder substance into numerous smaller
portions.[sic] I saw him place the plate of white powder stacks
into the microwave in said residence and at this point I
believed him to be preparing Crack Cocaine. The said Bill Rex
Adams was known to me to be involved in illegal narcotic
activities prior to this occasion.
On the basis of this affidavit, a judge issued a warrant authorizing police
to search the appellant’s residence for cocaine base, also known as crack
cocaine. The execution of the search warrant produced powder cocaine, drug
paraphernalia, and marijuana cigarette butts or joints.
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The appellant filed a motion to suppress the evidence seized pursuant to
the execution of the search warrant. He alleged that the search warrant was
issued without probable cause and that the warrant was issued based on
materially false statements recklessly made by the affiant. The appellant
claimed that all of his blinds were closed so as to prevent any observations from
the exterior of the house when the officers said that they saw Adams dividing
cocaine. The appellant further claimed that his dog would have barked if anyone
had been as close to the house as the officers claimed that they were. After
conducting a lengthy evidentiary hearing, the trial court denied the motion. The
court found that no statement was recklessly made and that no information was
illegally obtained. The court raised the issue of whether the affidavit contained
an adequate basis to support Officer Wilkerson’s statements. After concluding
that the police officer was not required under the law to state the basis of his
knowledge, the court further denied the appellant’s motion to suppress.
On appeal, the appellant contends that the trial court erred in overruling
his motion to suppress because Officer Wilkerson did not provide a basis in the
affidavit for his conclusion that drug activity was taking place. The appellant
contends that Officer Wilkerson did not state why he believed that the white
powder substance was cocaine and why he believed that Adams was preparing
crack cocaine. The appellant further argues that because Officer Wilkerson did
not state in the affidavit that he was relying on Detective Worthington’s expertise,
that evidence cannot be considered by this Court.
The state contends that the analysis in State v. Jacumin, 778 S.W.2d 430(Tenn. 1989) requiring an affiant to establish the veracity and basis of knowledge
of the source of information in the affidavit does not apply because the
information contained in the affidavit did not come from a confidential informant.
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The state contends that the information in the affidavit establishes that the affiant
had probable cause to believe that criminal activity was afoot. We agree.
An affidavit is a prerequisite to the issuance of a search warrant. See
Tenn. Code Ann. § 40-6-103 (1990); State v. Johnson, 854 S.W.2d 897 (Tenn.
Crim. App. 1993). The contents of the affidavit must establish probable cause.
See Tenn. Code Ann. § 40-6-104 (1990); Tenn. R. Crim. P. 41(c). “Generally,
probable cause is a reasonable ground for suspicion, supported by
circumstances indicative of an illegal act.” Johnson, 854 S.W.2d at 899. “Only
the probability, and not a prima facie showing of criminal activity is the standard
of probable cause.” State v. Moon, No. 01C01-9401-CC-00023 (Tenn. Crim.
App. filed at Nashville, Sept. 1, 1994). Looking only at the affidavit, we conclude
that Officer Wilkerson’s statements based on his observations establish the
probability that criminal activity was occurring in the appellant’s residence. We
must next determine if the officer was required to state why he thought that he
saw cocaine and why he thought that he observed the processing of cocaine into
crack cocaine.
When an affiant relies upon information obtained from a confidential
informant to establish probable cause, the information in the affidavit must
establish the basis of the informant’s knowledge and veracity. See Jacumin, 778
S.W.2d at 436. This probable cause requirement is generally referred to as the
two-pronged Aguilar-Spinelli test. See id. “Where the information that the
warrant is based on comes from a ‘citizen informant,’ or [an] ‘informant not from
the criminal milieu,’ the two-pronged test does not apply, and there is a
presumption that the information is reliable.” State v. Moon, No. 01C01-9401-
CC-00023 (Tenn. Crim. App. filed at Nashville, Sept. 1, 1994).
In State v. Kennedy, 649 S.W.2d 275, 279 (Tenn. Crim. App. 1982),
overruled on different grounds by State v. Holt, 691 S.W.2d 520 (Tenn. 1984),
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the affidavit in question contained a statement from a sheriff that he had
observed marijuana plants growing on the defendant’s property. The defendant
challenged the legality of the warrant because the affidavit failed to state how the
sheriff knew that the plants were contraband. The Court stated that it was not
necessary for the affiant to indicate how he knew that the plant material he
observed was marijuana. “To require the affiant to be absolutely certain would
require laboratory testing. This is not necessary to establish probable cause.”
Id.
Similarly, under the facts in this case, where the affiant is a law
enforcement officer and his information is based on personal observations and
establishes the probability of criminal activity, the officer is not required to state
the basis of his knowledge.
The judgment of the trial court is AFFIRMED.
_____________________________
PAUL G. SUMMERS, Judge
CONCUR:
__________________________
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DAVID G. HAYES, Judge
__________________________
JERRY L. SMITH, Judge
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