        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 21, 2014

          STATE OF TENNESSEE v. LAQUITA MONIQUE HOGAN

                   Appeal from the Circuit Court for Maury County
                       No. 21747    Stella L. Hargrove, Judge




               No. M2013-02340-CCA-R3-CD - Filed November 3, 2014


This direct appeal presents a certified question of law pursuant to Rule 37(b)(2)(A) of the
Tennessee Rules of Criminal Procedure. After the trial court denied her motion to suppress,
Defendant, Laquite Monique Hogan, entered a guilty plea in the Maury County Circuit Court
to facilitation of possession of a schedule II drug for sale and was sentenced to three years
to be suspended and served on probation. Defendant properly reserved the following
certified question of law: “whether there was a sufficient nexus that continued to persist at
the time the search warrant was executed due to the fact that the location of the alleged sales
was away from the residence and the affidavit does not include facts that Jason Coleman was
seen coming and returning to his home from the sale which was to have occurred 96 hours
ago; whether the alleged facts that Mr. Coleman was monitored leaving from his home and
returning within 30 days of the execution of the warrant was stale information and whether
the record supports the finding that both prongs of Aguil[]ar-Spinelli have been satisfied.”
After a thorough review of the record and applicable authorities, we conclude that Defendant
is not entitled to relief in this appeal. Accordingly, we affirm the trial court’s order denying
Defendant’s motion to suppress, and we affirm Defendant’s judgment of conviction.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

T HOMAS T. W OODALL, P.J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R. J., joined. J EFFREY S. B IVINS, J., not participating.

Robin Farber, Columbia, Tennessee, for the appellant, Laquita Monique Hogan.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
T. Michel Bottoms, District Attorney General; and Brent Cooper, Assistant District Attorney
General, for the appellee, the State of Tennessee.
                                           OPINION

        Defendant challenges the trial court’s finding of probable cause based on the
supporting affidavit. As stated in her brief, Defendant has narrowed the issue stated in the
reserved certified question of law. Defendant’s brief states the issue on appeal as follows:
“Whether the nexus between the criminal activity and the place to be searched continued to
persist at the time the warrant was issued?” Defendant makes arguments in the argument
section of her brief regarding the other components of the certified question, that the affidavit
fails to establish a nexus between the alleged criminal activity and the location to be
searched, and that the affidavit fails to satisfy either prong of the Aguilar-Spinelli test, being
veracity and basis of knowledge. Defendant’s precise statement of the issue on appeal,
however, pertains only to whether the nexus persisted. The State responds that the trial court
properly denied Defendant’s motion to suppress. Despite Defendant’s failure to precisely
state the entire reserved question of law, we will address the issues raised in the certified
question of law and properly argued on appeal.

       We will uphold a trial court’s findings of fact at a suppression hearing unless the
evidence preponderates to the contrary. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
“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.” Id. “We afford to the party prevailing in the trial court the strongest legitimate view
of the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). We review, however, a trial
court’s application of the law to the facts under a de novo standard of review. State v.
Williams, 185 S.W.3d 311, 315 (Tenn. 2006).

       Under both the Tennessee and United States Constitutions, no search warrant may be
issued except upon probable cause, which “requires reasonable grounds for suspicion,
supported by circumstances indicative of an illegal act.” State v. Smotherman, 201 S.W.3d
657, 662 (Tenn. 2006). Tennessee requires a written and sworn affidavit, “containing
allegations from which the magistrate can determine whether probable cause exists,” as “an
indispensable prerequisite to the issuance of a search warrant.” State v. Henning, 975
S.W.2d 290, 294 (Tenn. 1998). The affidavit must contain more than mere conclusory
allegations on the part of the affiant. Id. The standard to be employed in reviewing the
issuance of a search warrant is “whether the issuing magistrate had ‘a substantial basis for
concluding that a search would uncover evidence of wrongdoing.’” Smotherman, 201
S.W.3d at 662 (quoting State v. Ballard, 836 S.W.2d 560, 562 (Tenn. 1992)).

       Our supreme court has explained that, in order to establish probable cause for the
issuance of a search warrant, the underlying affidavit “must set forth facts from which a

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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) (citations omitted). “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.”
Id. (citation omitted); see also State v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009) (recognizing
that an affidavit in support of a search warrant “must show a nexus among the criminal
activity, the place to be searched, and the items to be seized”) (citing State v. Reid, 91 S.W.3d
247, 273 (Tenn. 2002); Smith, 868 S.W.2d at 572)). “In determining whether probable cause
supports the issuance of a search warrant, reviewing courts may consider only the affidavit
and may not consider other evidence provided to or known by the issuing magistrate or
possessed by the affiant.” Id. (citing State v.. Carter, 160 S.W.3d 526, 533 (Tenn. 2005)).

       Defendant’s charges resulted from a search of a residence located at 1611 South High
Street in Columbia. At the hearing on Defendant’s motion to suppress, defense counsel
conceded that Defendant resided at the same address as Jason Coleman and that she was
present at the residence when the search warrant was executed. The affiant in the affidavit
submitted in support of issuance of the search warrant was Agent David Stanfill of the Maury
County Sheriff’s Drug Unit. The affidavit states in relevant part as follows:

                      Statement of Facts in Support of Probable Cause

        ....

        Within the past 96 hours your Affiant has made a controlled purchase of
        marijuana from “Jason”, aka Jason Coleman. Your Affiant has used a co-
        operating individual (Known as C.I. from here on) to make several
        controlled purchases, during the last 30 days, of Marijuana from a B/M
        known as “Jason”, and later identified as Jason Coleman, at the said
        address. The C.I., during the purchases, was met at a predetermined
        location where the C.I. and the C.I.’s vehicle were searched for illegal
        contraband and nothing was found. The C.I. was then fitted with audio and
        video recording equipment and given buy money to make the purchases.
        The C.I. was then followed to the Kwik Sak Market, located at West 17 th St.
        and Carmack Blvd. where the sales took place. The C.I. was monitored and
        was observed during the transactions and was followed back to the
        predetermined location where the C.I. did turn over a quantity of Marijuana.
        The C.I. and their vehicle were then searched again and nothing was found.
        There were two deals done where Officers set up and observed Jason
        Coleman’s residence. Jason Coleman was seen exiting the apartment and
        go to the Kwik Sak Market and make the sale to the C.I. After the deal was

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        done Jason Coleman was observed returning to the same apartment he had
        left. Your affiant has made contact with the owner of the residence and
        confirmed that this is Jason Coleman’s residence. The owner states that
        Jason Coleman rents the apartment and has been staying there for
        approximately 8 months. Jason leaves the apartment and makes the sale and
        returns to the same said apartments. Therefore your affiant believes that
        there will be Narcotics and proceeds from the sales of Narcotics located at
        the said residence.

       At the suppression hearing, the trial court heard arguments of counsel and examined
the affidavit. No testimony or other evidence was presented. The trial court denied
Defendant’s motion to suppress, finding as follows:

              [T]he Court has to look at this affidavit as a whole, and there’s
        enough there to satisfy this Court, insofar as the nexus.

               Now, I know it sounds a little confusing. My reading of the affidavit
        and the reason that I believe that the issuing Magistrate signed this and
        issued it was, there’s enough there to document how they treated the C.I.,
        insofar as a predetermined location searched, fitted with an audio and video
        recording equipment, given the money, and then also searched after the buy
        was made. I think there’s enough there and I think there’s enough there
        under [State v.] Saine[, 297 S.W.3d 199, 206 (Tenn. 2009)] .

               It doesn’t matter in this Court’s mind that every time they saw him
        exit and enter the apartment. There’s enough there with the routine, using
        that apartment.

               And I don’t know if the two deals – I don’t know what that means,
        but they do have deals within the last 30 days and they do have a buy within
        the past 96 hours.

               So taken as a whole, the Court is going to say and rule that the
        affidavit is good.

               I’m not concerned about staleness under case law, and I think I’ve
        covered the other issues of Aguilar and Spinelli and the nexus to make a
        ruling here.

        ....

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         [W]e[‘ve] got a difference here with the last 96 hours compared to
         Archibald. I am familiar with Archibald and Booker. I’m going to deny the
         motion to suppress.

        Defendant contends that the affidavit fails to establish a sufficient nexus between the
criminal activity and the residence to be searched. Defendant asserts that the affidavit
“obviously . . . lacks any facts supporting the supposition that drugs would be recovered at
the residence.”

        We recognize Defendant’s argument that there must be a “nexus among the criminal
activity, the place to be searched, and the items to be seized.” See State v. Saine, 297 S.W.3d
199, 206 (Tenn. 2009). We conclude that there existed such a nexus, which was created by
police officers’ personal observations of Jason Coleman leaving and returning directly to his
residence before and after the drug sales, as well as Detective Stanfill’s statements that he
confirmed with the landlord of the apartment that Jason Coleman resided there and that in
Detective Stanfill’s experience, he believed that contraband would be located in a drug
seller’s residence.

        In State v. Saine, the Tennessee Supreme Court held that circumstances similar to
those in this case constituted probable cause to issue a search warrant. State v. Saine, 297
S.W.3d 199, 206-07 (Tenn. 2009). In that case, a detective swore by affidavit that he
observed the defendant leave his residence, sell drugs to a confidential informant, and return
directly to his residence. Id. at 203-04. The detective also stated in the affidavit that, in his
experience, drug sellers commonly stored drugs, proceeds, and records thereof in their
residences or “other locations which they control.” Id. at 202. The supreme court explained
that an affidavit lacking “definite proof that the seller keeps his supply at his residence” gives
probable cause to search a location as long as the affidavit contains “some additional facts,”
such as that the seller went to his home either before or after the sale, “which would support
the inference that the supply is probably located there.” Id. (quoting 2 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 3.7(d) (4th ed. 2004 &
Supp.2008-09) (footnotes omitted). The court concluded that, because the detective stated
his knowledge of drug sellers’ storage practices and because the detective observed the
defendant in that case travel directly to the controlled buy location from his home and
directly return, the magistrate had probable cause to believe the home would contain
evidence of his drug activity. Id. at 206-07.

       Here, the affidavit states that Detective Stanfill confirmed Jason Coleman’s place of
residence through his landlord. The affidavit also states that based on Detective Stanfill’s
experience and training, he is aware that drug dealers often hide contraband and proceeds of
drugs sales in their residences. Based on the direct observations of law enforcement officers

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on two occasions that Jason Coleman left and then returned to his residence immediately
before and after a drug exchange, we conclude that the affidavit was sufficient to establish
a nexus between the criminal activity and Jason Coleman’s residence.

       Defendant also contends that the affidavit did not contain sufficient information to
establish how long the nexus would persist. In State v. Archibald, this court affirmed the trial
court’s grant of a motion to suppress. 334 S.W.3d at 212. In Archibald, the affidavit stated
that, within the last 72 hours, a confidential informant was under surveillance “and was
observed walking to the rear door of the apartment number 5A” and entering the apartment
through the door. Id. at 213-14. The confidential informant could be heard by officers
talking with “someone” inside the residence, and then he was seen exiting the residence
through the rear door. Id. at 214. He walked back to the officers and gave them the
contraband, “which was believed by the [confidential informant] to be crack cocaine. . . .”
Based upon this information, officers sought a search warrant for the premises. Id.

       In Archibald, this court concluded that the evidence preponderated against the trial
court’s finding that a nexus did not exist between the criminal activity and the residence to
be searched based on the direct observations of the detective as stated in the affidavit. Id. at
215. However, we held that “[a]lthough the affidavit in this case contained information
establishing a nexus between the seller’s apartment and criminal activity, it contained no
information tending to establish how long that nexus would persist.” Id.

       Defendant argues that the information contained in the affidavit in this case was
“stale” because it was up to 30 days old. In Archibald, we held that the information
contained in the affidavit was stale, not because the officer’s observations were 72-hours old,
but because the affidavit “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.”
Therefore, “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. We recognized in Archibald that the
affidavit in that case “would have been sufficient had it contained information reliably
establishing ongoing criminal activity.” Id. If the illegal activity is described as ongoing, it
is generally held that the affidavit does not become stale with the passage of time. State v.
Hayes, 337 S.W.3d 235 (Tenn. Crim. App. 2010) (citing State v. Stepherson, 15 S.W.3d 898,
903 (Tenn. Crim. App. 1999); State v. Thomas, 818 S.W.2d 350, 357 (Tenn. Crim. App.
1991).

       We conclude that the affidavit in this case established ongoing criminal activity.
Direct observations by law enforcement officers through a course of investigation within 30
days of the issuance of the search warrant, combined with Detective Stanfill’s statement that



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he believed drugs and proceeds of drug sales would be located at the residence based on his
experience, was sufficient to establish that the nexus would persist.

       Finally, Defendant contends that the facts in the affidavit fail to satisfy either prong
of Aguilar-Spinelli. When probable cause for issuance of a search warrant is based upon
information from a confidential informant, the two-pronged Aguilar-Spinelli test adopted in
State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989), must be satisfied. Under the first,
“basis of knowledge” prong of the test, “facts must be revealed which permit the magistrate
to determine whether the informant had a basis for his information that a certain person had
been, was or would be involved in criminal conduct or that evidence of crime would be
found at a certain place.” State v. Moon, 841 S.W.2d 336, 338 (Tenn. Crim. App. 1992).
Under the second, or “veracity” prong of the test, “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.” Id. (citation omitted). Although independent police
corroboration may compensate for deficiencies in either prong, each prong of the test must
be satisfied to establish probable cause. Smotherman, 201 S.W.3d at 662 (citing State v.
Williams, 193 S.W.3d 502, 507 (Tenn. 2006)); Jacumin, 778 S.W.2d at 436.

        There is nothing in the affidavit that was used to establish probable cause based on
information provided by the cooperating individual (“C.I.”) in this case. The affidavit states
that several controlled purchases using a cooperating individual were arranged by law
enforcement officers. The C.I. and the C.I.’s vehicle were searched to ensure that the C.I.
did not possess controlled substances. Officers provided the C.I. with purchase money and
fitted the C.I. with audio and video monitoring equipment. Following the controlled
purchases, the C.I. returned to the predetermined meeting locations and delivered a quantity
of marijuana to the officers. The C.I. was monitored by officers during the purchases. The
C.I. then delivered a quantity of marijuana to officers. On two occasions, Jason Coleman
was personally observed by law enforcement officers leaving his residence, making a sale
to the C.I. at the Kwik Sak Market, and returning to his residence. Because there was no
information provided by the C.I., the C.I.’s veracity and basis of knowledge need not be
established.

      We conclude that the trial court did not err when it denied Defendant’s motion to
suppress. Accordingly, the judgment is affirmed.


                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




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