State of Tennessee v. Jeffrey Wayne Haithcote

08/11/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 14, 2019
STATE OF TENNESSEE v. JEFFREY WAYNE HAITHCOTE
Appeal from the Circuit Court for Bedford County
No. 18542 Forest A. Durard, Jr., Judge
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No. M2018-01943-CCA-R3-CD
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The Appellant, Jeffrey Wayne Haithcote, pled guilty in the Bedford County Circuit Court
to two counts of selling heroin and one count of possessing heroin with intent to sell, Class
B felonies. As a condition of his pleas, he reserved certified questions of law concerning
whether the trial court erred by denying his motion to suppress the search of his residence
because the affidavit underlying the search warrant did not establish probable cause. Upon
review, 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 ALAN E. GLENN and
J. ROSS DYER, JJ., joined.
Roger Clay Parker, Shelbyville, Tennessee (at plea hearing and on appeal), and M. Wesley
Hall, IV, Unionville, Tennessee (at suppression hearing), for the Appellant, Jeffrey Wayne
Haithcote.
Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney
General; Robert James Carter, District Attorney General; and Michael David Randles,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Factual Background
This case relates to drug buys conducted by the 17th Judicial District Drug Task
Force (DTF) on March 24 and March 29, 2016. During the buys, a confidential informant
(CI) bought heroin from James Woods. The Appellant supplied the heroin to Woods.
After the first buy on March 24, DTF Agent Shane George prepared an affidavit in
support of a search warrant and obtained a search warrant for the Appellant’s home.
Although the search warrant was issued on March 24, the DTF did not execute the warrant
until March 29. Prior to executing the warrant, though, the CI made the second controlled
buy of heroin from Woods. The DTF then executed the warrant and found drug evidence
in the Appellant’s residence.
In April 2017, the Bedford County Grand Jury returned a multi-count indictment
against the Appellant, charging him with two counts of selling heroin, two counts of
delivering heroin, two counts of conspiracy to sell or deliver heroin, one count of
possession of heroin with intent to sell, one count of possession of heroin with intent to
deliver, and one count of possession of drug paraphernalia. The Appellant filed a motion
to suppress the evidence, asserting that the search warrant failed to establish probable cause
because “the statements of the CI are rendered unreliable due to ingestion of Heroin by the
CI while under the direction of the 17th Judicial Drug Task Force.” The Appellant also
asserted that the affidavit failed to establish the CI’s credibility because the affidavit simply
provided that the CI had made controlled buys previously for the DTF. In addition to the
motion to suppress, the Appellant filed a motion to sever the March 24 offenses from the
March 29 offenses.
The trial court held a joint hearing on the two motions. First, the trial court
addressed the Appellant’s motion to suppress. Defense counsel stated that there would be
no proof on the motion except for the affidavit filed in support of the search warrant. The
trial court noted that the Appellant’s motion to suppress was “somewhat limited to the four
corners of the document.”
The March 24 affidavit was admitted into evidence. In the affidavit, Agent George
requested to search the Appellant’s home at 2372 Highway 64 East in Shelbyville for
“Heroin and Confidential Funds used to purchase heroin from [the Appellant].” He then
explained as follows: Earlier that day, the CI told Agent George that James Woods, who
lived on Forrest Avenue, was involved in the illegal distribution of heroin and prescription
medication. The CI told the agent that he could buy four thirty-milligram Roxicet pills
from Woods for $140. The CI agreed to make a controlled buy from Woods and met Agent
George, Assistant Director Tim Miller, and Agent Joe Ramirez at a prearranged location.
Prior to the buy, Agent Ramirez searched the CI and his vehicle and found no contraband.
Agent George gave the CI $140 in “prerecorded confidential funds” to make the buy and
equipped the CI with electronic devices to allow the agents to monitor and record the buy.
Agents George and Ramirez followed the CI and saw him enter the back door of Woods’
residence. Approximately ten to fifteen minutes later, the agents followed the CI as he left
the residence and drove back to the prearranged location. The CI gave the agents four
Roxicet pills and the recording devices. The CI told Agent George that he purchased the
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pills from Woods using the $140 given to him by the agents. The CI also told the agents
that while he was inside Woods’ residence, he had seen a small amount of heroin in Woods’
possession and that he had used a small portion of the heroin with Woods. The agents
searched the CI and did not find any contraband or money. The CI told the agents that
Woods had offered to sell him one-half gram of heroin for $150 or one gram of heroin for
$300. Agent George decided to send the CI back to Woods’ residence to buy one-half
gram of heroin. He gave the CI $150 in prerecorded bills and equipped the CI with the
recording and monitoring devices.
The affidavit stated that the agents followed the CI to Woods’ residence and
watched the CI enter the residence through the back door. After several minutes, Assistant
Director Miller and Agent George saw a 1998 Ford F-150 XLT truck arrive. The truck,
which was driven by a white male, remained in Woods’ driveway for about five minutes
and left. Agent Ramirez followed the truck and recorded the license plate. He learned the
truck was registered to the Appellant at 2372 Highway 64 East. Assistant Director Miller
and Agent George saw the CI and Woods exit Woods’ residence, get into the CI’s vehicle,
and drive away from the residence. “The CI informed [Agent George] that Woods was
going to his sources [sic] residence” to get the heroin. The agents followed the CI and
Woods to the Appellant’s residence. Ten to fifteen minutes later, Agent George watched
the CI and Woods leave the Appellant’s residence. The agents followed the CI and Woods.
They watched as Woods got out of the vehicle at his residence, and the CI left. The agents
followed the CI to the prearranged location. The CI gave Agent George the recording
devices and a plastic bag containing “suspected Heroin.”
According to the affidavit, the CI told the agents that when the CI arrived at Woods’
residence, Woods weighed the heroin he had in his possession. Woods then “told the CI
that he didn’t want to get rid of the rest of his stuff and decided to call his source.” Woods
telephoned the source in front of the CI and placed an order. The CI heard the source tell
Woods that the source was in Woods’ driveway. Woods initially thought the source was
“kidding” but eventually realized the source had been at Woods’ house. Woods arranged
to go to the source’s residence and then directed the CI to drive him to 2372 Highway 64
East. The CI gave Woods $150, and Woods met with the driver of the Ford F-150. “The
CI positively identified the driver of the 1998 Ford F-150 and the person the CI saw Woods
meet with as [the Appellant].” Agent George searched the CI but found no contraband or
money. The affidavit stated that the CI had made controlled buys of cocaine, prescription
pills, and heroin previously for the DTF.
The trial court took the motion to suppress under advisement and turned to the
Appellant’s motion to sever the offenses. Agent George testified briefly about the heroin
buy on March 24. He then testified about the heroin buy on March 29. Agent George
explained that on March 29, the CI went to Woods’ residence to buy one gram of heroin
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for $300. The CI stayed at Woods’ residence to watch Woods’ children, and Woods left
in the CI’s vehicle. Agents, who were surveilling the Appellant’s residence, saw Woods
arrive in the CI’s vehicle. Woods met with the Appellant in the driveway, and they went
inside the Appellant’s residence. Woods came outside, got into the CI’s vehicle, returned
home, and gave the drugs to the CI. The CI left Woods’ residence and met with the DTF
agents. The CI gave the agents the substance he obtained from Woods. Testing revealed
the substance was .72 grams of heroin.
After the heroin buy on March 29, the DTF agents executed the search warrant that
had been issued on March 24. During their search of the Appellant’s home, they found
3.65 grams of heroin, digital scales, baggies, and $830. The agents found $40 from the
March 24 heroin buy in a jacket in the residence and the $300 for the March 29 heroin buy
in the Appellant’s pocket.
The trial court filed an order denying the Appellant’s motion to suppress. In the
order, the trial court said that the Appellant appeared to be arguing that the State failed to
satisfy “the former 2 prong [Aguilar-Spinelli] test set forth in [State v. Jacumin, 778
S.W.2d 430 (Tenn. 1989),] regarding” the CI’s basis of knowledge and reliability. The
trial court noted that in State v. Tuttle, 515 S.W.3d 282, 308 (Tenn. 2017), our supreme
court abandoned the test espoused in Jacumin and adopted the totality of the circumstances
review explained by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213
(1983).
The trial court stated that it could only consider the information contained in the
affidavit in determining whether the State established probable cause for the search
warrant. The trial court noted that the affidavit reflected that the CI’s actions had been
monitored by the DTF agents. After purchasing pills from Woods, the CI told DTF agents
that he had used heroin with Woods. Thereafter, the CI returned to Woods’ residence to
buy heroin from Woods. The agents saw a truck arrive in Woods’ driveway and soon
depart. Meanwhile, Woods placed a telephone call to his source, and the CI overheard the
source say that he was in the driveway. The DTF confirmed that the Appellant owned the
truck and confirmed the address for the truck. The DTF agents followed the CI and Woods
to the Appellant’s address. While there, Woods obtained heroin from the Appellant. The
CI identified the Appellant as the “source” the CI saw meet with Woods. The trial court
said:
While this involved a single buy from the residence of
the [Appellant], the same is but one of many factors to
consider. Given the very close proximity in time and the very
closely monitored surveillance by DTF, a common sense,
nontechnical approach and practical reading of the affidavit
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would lead one to believe there were probably drugs at the
[Appellant’s] house based on the facts contained in the
affidavit.
The Appellant agreed to plead guilty to two counts of selling heroin and one count
of possessing heroin with the intent to sell, and he accepted concurrent sentences of twelve
years at thirty-five percent release eligibility for each conviction. As a condition of his
pleas, the Appellant reserved the following certified questions of law pursuant to Tennessee
Rule of Criminal Procedure 37(b)(2):
1. Whether the court properly determined that the
[Appellant’s] Motion to Suppress was determined by the
entirety of the circumstances under [Tuttle] or should have
been determined under the [Aguilar-Spinelli] two prong test.
2. Whether the trial court properly determined information
as to the credibility and veracity of the CI in the affidavit in
support of the search warrant was correct.
3. Whether the nexus of activity at the Woods home and
the conduct of the Confidential Informant [were too] remote to
establish probable cause to obtain a search warrant and an
arrest warrant of the [Appellant].
II. Analysis
The Appellant properly reserved his certified questions in accordance with the
requirements of State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988), and Tennessee Rule
of Criminal Procedure 37(b)(2)(A). However, in his appellate brief, he states that he
“wishes to abandon” his first certified question. Therefore, we will only consider his latter
two questions.
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
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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.
Initially, we note that the Appellant contends that in ruling on his motion to
suppress, the trial court made “several observations that with all due respect to the court
are either outright wrong or is information not testified to in the Suppression hearing.” The
Appellant asserts that Agent George was the only witness to testify at the suppression
hearing and that the March 29 events “seemed to be what the court and the District Attorney
focused on.” However, Agent George testified during the portion of the hearing that dealt
with the Appellant’s severance motion; he did not testify in relation to the suppression
motion. Defense counsel even advised the trial court that the parties would not be
presenting any proof on the motion to suppress and would be relying on the information
contained in the affidavit. The trial court said in its order denying the suppression motion
that it had considered only the information contained in the affidavit. Our supreme court
has stated that “[t]he probable cause necessary for issuance of a search warrant must be
based upon evidence appearing in a written and sworn affidavit.” State v. Carter, 160
S.W.3d 526, 533 (Tenn. 2005) (citing Jacumin, 778 S.W.2d at 432). Therefore, the trial
court properly considered only the affidavit in ruling on the Appellant’s motion to suppress.
The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect citizens against unreasonable searches and seizures.
Our supreme court has stated 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 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.’” Tuttle, 515 S.W.3d at 299 (quoting Jacumin, 778 S.W.2d at 432). We note
that “‘affidavits must be looked at and read in a commonsense and practical manner’, and
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. . . 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)).
The first question at issue is “[w]hether the trial court properly determined that the
information as to the credibility and veracity of the C.I. in the affidavit supporting the
search warrant was correct.” Previously, this State utilized 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 Aguilar-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).
“[U]nder 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.” Lowe, 949 S.W.2d at 305. Nevertheless, “the affiant
must provide some concrete reason why the magistrate should believe the informant.” Id.
At the time of the Appellant’s motion to suppress, our supreme court had abandoned
the “rigid” Aguilar-Spinelli test adopted in Jacumin and adopted 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. Nevertheless, 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:
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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)).
The Appellant acknowledges on appeal that the Aguilar-Spinelli test is no longer
viable but contends that under the totality-of-the-circumstances analysis adopted by Tuttle,
“the informant’s basis of knowledge and veracity or credibility remain highly relevant
considerations.” The Appellant asserts that “[u]nder this analysis, bare-bones affidavits
containing only conclusory statements remain insufficient and independent police
corroboration of the details provided by the informant continue to add value to the
affidavit.” He also contends that the CI was not reliable because the CI used heroin with
Woods and was under the influence of the drug prior to buying heroin from Woods.
Here, the affidavit provided a conclusory statement that the CI had been used on
prior occasions. However, the police also independently corroborated much of the
information that the CI provided to the police. For example, prior to the heroin buy on
March 24, which was the basis for obtaining the search warrant, the CI claimed that he
could buy four Roxicet pills from Woods for $140. The DTF set up the controlled buy for
Roxicet, and the CI bought the four pills from Woods for $140. Moreover, after the CI
bought heroin from Woods on March 24, the CI explained what had occurred in Woods’
house. Specifically, the CI told the DTF agents that Woods had telephoned his source and
that the source claimed to be in Woods’ driveway. The source’s presence at Woods’ home
was verified by the DTF agents, who saw the Appellant’s truck pull into Woods’ driveway.
Therefore, the affidavit established a basis of knowledge and veracity for the CI.
Although the Appellant claims that the CI was not reliable because the CI used
heroin with Woods prior to the March 24 heroin buy, the CI told the DTF agents that he
used a “small” amount of heroin with Woods. Agent George sent the CI back to Woods’
residence to buy one-half gram of heroin, and the CI not only drove to and from Woods’
home, he also drove Woods to and from the Appellant’s home. After the heroin buy, the
CI gave a detailed account of the drug buy, and the police were able to verify much of his
information. In sum, nothing indicates that the CI was under the influence of heroin when
he bought heroin from Woods on March 24.
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The next question at issue concerns “[w]hether the nexus of activity at the Woods
home and the conduct of the Confidential Informant [are too] remote to establish probable
cause to obtain a search warrant and an arrest warrant of the [Appellant].” In order to
establish probable cause, the affidavit “must show a nexus among the criminal activity, the
place to be searched, and the items to be seized.” State v. Saine, 297 S.W.3d 199, 206
(Tenn. 2009) (citing State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002)). To determine
whether the nexus has been sufficiently established, we should “‘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).
In support of his argument that a nexus did not exist, the Appellant relies on State
v. Archibald, 334 S.W.3d 212 (Tenn. Crim. App. 2010), and State v. George Lamont Hall,
No. M2013-02841-CCA-R3-CD, 2014 WL 4952989 (Tenn. Crim. App. at Nashville, Oct.
3, 2014). In Archibald, the affidavit submitted in support of issuance of the search warrant
described a one-time purchase of narcotics by a CI from someone in an apartment. 334
S.W.3d at 213-14. The affidavit provided no other information about the CI except that
“[t]he CI has been used in the past for the successful recovery of illegal narcotics as well
as the successful prosecution of such offenses.” Id. at 214. In determining whether the
trial court properly granted the defendant’s motion to suppress evidence, this court
described the issue as “whether an affidavit alleging only that drugs were bought in a
particular apartment up to seventy-two hours beforehand can support a warrant for the
search of that apartment and its occupants.” Id. at 215. This court went on to conclude
that although the affidavit contained information establishing a nexus between the
defendant’s apartment and the criminal activity, it did not contain any information to
establish how long that nexus would persist. Id. For example,
[i]t did not . . . contain any facts supporting an inference that
the person who sold drugs to the CI was more than a one-time
visitor to the apartment. Likewise, it did not establish that the
CI observed any drugs other than the drugs he bought. Under
these circumstances, we must conclude that the information in
the affidavit became stale as soon as enough time had passed
for such a one-time seller to leave the apartment.
Id. at 215-16. The court noted, though, that the affidavit would have established probable
cause if it had contained reliable information from the CI to show ongoing criminal activity.
Id. at 216.
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 In Gregory Lamont Hall, the affiant stated in the affidavit that he had received
information that drugs were being sold at the target residence. No. M2013-02841-CCA-
R3-CD, 2014 WL 4952989, at *1. Like the affidavit in Archibald, the affidavit in Gregory
Lamont Hall “described [a] CI entering the apartment and then ‘momentarily’ exiting the
apartment after making a controlled buy.” Id. at *4. It also stated that the CI had provided
information in the past that had led to the recovery of illegal drugs. Id. at *2. As this court
explained:
The affidavit did not reveal the quantity of drugs received, the
identity of the seller, the identity of the target location’s
residents, or whether the seller was a resident of the target
location. Likewise, the affidavit did not establish that the seller
“was more than a one-time visitor to the apartment” or that the
CI observed other drugs inside the residence. Archibald, 334
S.W.3d at 215.
Id.
In Gregory Lamont Hall, the State tried to distinguish the affidavit from that in
Archibald by arguing that the affidavit reliably established ongoing criminal activity at the
target residence. Id. Specifically, the affidavit stated at the beginning that it “was based
upon either the ‘affiant’s personal knowledge, upon information received from other law
enforcement officers, or upon information obtained from other sources as noted’ and [the
affiant’s] statement that he had ‘received information that illegal narcotics were being sold
at’ the target residence.” Id. However, this court rejected the State’s argument, concluding
that the affiant police officer’s statement that drugs were being sold at the residence was
merely a conclusory allegation and could not reliably establish ongoing criminal activity
at the home. Id.
Like Archibald and Gregory Lamont Hall, the affidavit in the instant case involved
the one-time sale of heroin. However, we agree with the State that the affidavit at issue is
distinguishable from the previous cases. When Woods needed more heroin on March 24,
he told the CI that he would contact his source. The CI heard Woods talking to his source
on the telephone. Soon thereafter, the Appellant’s Ford F-150 arrived at Woods’ home but
left. The CI and Woods drove to the Appellant’s residence and met with the driver of the
Ford F-150. The CI then drove Woods back to Woods’ home, met with the DTF agents,
and turned over the heroin he had purchased from Woods. The CI positively identified the
Appellant as the driver of the Ford F-150 and the person Woods met to obtain heroin. As
the trial court found, “Given the very close proximity in time and the very closely
monitored surveillance by DTF, a common sense, nontechnical approach and practical
reading of the affidavit would lead one to believe there were probably drugs at the
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defendant’s house based on the facts contained in the affidavit.” Moreover, the search
warrant was issued the same day as the buy underlying the affidavit in support of the search
warrant. Accordingly, we conclude that the affidavit established a nexus between the CI’s
purchase of heroin from Woods and the Appellant’s residence and that the trial court did
not err by holding that the affidavit provided sufficient probable cause for the issuance of
the search warrant.
III. Conclusion
The judgment of the trial court is affirmed.
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NORMA MCGEE OGLE, JUDGE
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