         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs February 16, 2005

            STATE OF TENNESSEE v. ROBERT GENE MAYFIELD

                    Appeal from the Circuit Court for Montgomery County
                          No. 40300798     Michael R. Jones, Judge



                      No. M2004-01539-CCA-R3-CD - Filed June 3, 2005



The Appellant, Robert Gene Mayfield, presents for review a certified question of law. See Tenn. R.
Crim. P. 37(b)(2)(i). Mayfield pled guilty to felony possession of over .5 grams of cocaine with the
intent to sell and felony possession of over one-half ounce of marijuana with the intent to sell. He
was subsequently sentenced to an effective eight-year sentence to be served on probation. As a
condition of his guilty plea, Mayfield explicitly reserved a certified question of law challenging the
denial of his motion to suppress evidence found during the execution of a search warrant at his
residence. Mayfield argues that the affidavit given in support of the warrant was insufficient to
establish probable cause. After review of the record, we affirm the judgment of the Montgomery
County Circuit Court denying the motion to suppress.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS
T. WOODALL, J., joined.

Timothy R. Wallace, Clarksville, Tennessee, for the Appellant, Robert Gene Mayfield.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
and Lance Baker, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

                                        Procedural History

       On February 17, 2003, officers with the 19th Judicial District Drug Task Force executed a
search warrant at the home of the Appellant in Montgomery County. The search yielded
approximately four ounces of cocaine, approximately one-quarter pound of marijuana, several items
of drug trafficking paraphernalia, a semi-automatic pistol, and $823.00 in cash. In May of 2003, a
Montgomery County grand jury returned a five-count indictment charging the Appellant with: (1)
possession of cocaine with the intent to sell, over 26 grams; (2) possession of cocaine with intent to
deliver, over 26 grams; (3) possession of marijuana with intent to sell, over one-half ounce; (4)
possession of marijuana with intent to deliver, over one-half ounce; and (5) possession of drug
paraphernalia.

        On March 11, 2004, the Appellant filed a motion to suppress the evidence found during the
search, alleging that the affidavit given in support of the warrant was insufficient to support a finding
of probable cause. After a suppression hearing, the trial court found the affidavit contained sufficient
probable cause and denied the motion. On May 17, 2004, the Appellant pled guilty to Class B felony
possession of cocaine with the intent to sell, over .5 grams, and Class E felony possession of
marijuana with the intent to sell, over one-half ounce. The remaining charges were dismissed. As
part of the plea agreement, the Appellant was sentenced to concurrent sentences of eight years for
the cocaine conviction and two years for the marijuana conviction, all to be served on probation.
However, as part of the agreement, the Appellant explicitly reserved a certified question of law,
which is now before this court on appeal.

                                               Analysis

        In this appeal, the Appellant seeks review of the following certified question of law:

        That the trial court should have suppressed the cocaine seized from the defendant’s
        property pursuant to the execution of a search warrant on the defendant’s property.
        The certified question of law is: Is the affidavit of complaint setting forth probable
        cause for the issuance of the search warrant sufficient to establish probable cause for
        the issuance of the search warrant.

I. Certified Question of Law

        Rule 37(b)(2)(i), Tennessee Rules of Criminal Procedure, allows an appeal from a guilty plea
under very narrow circumstances. An appeal lies from a guilty plea, pursuant to Rule 37(b)(2)(i),
if the final order of judgment contains a statement of the dispositive certified question of law
reserved by the Appellant, wherein the question is so clearly stated as to identify the scope and the
limit of the legal issues reserved. State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The order
must also state that the certified question was expressly reserved as part of the plea agreement, that
the State and the trial judge consented to the reservation, and that the State and the trial judge are of
the opinion that the question is dispositive of the case. Id. An issue is dispositive when this court
must either affirm the judgment or reverse and dismiss. State v. Wilkes, 684 S.W.2d 663, 667
(Tenn. Crim. App. 1984). If these circumstances are not met, this court is without jurisdiction to
hear the appeal. State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996). The burden is on the
Appellant to see that these prerequisites are in the final order and that the record brought to the
appellate court contains all of the proceedings below that bear upon whether the certified question
of law is dispositive and the merits of the question certified. Id.



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       The record before us demonstrates that the requirements of Rule 37 have been met.
Accordingly, we proceed to address the merits of the Appellant’s argument with regard to his motion
to suppress.

II. Motion to Suppress

         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, review of the trial court’s application of
law to the facts is purely de novo. 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.

        The search of the Appellant’s residence was conducted pursuant to a search warrant.
However, on appeal, the Appellant contends that there was insufficient probable cause to support
the issuance of the warrant. Specifically, he argues that the affidavit was based upon information
obtained from a confidential informant and that the affidavit failed to establish either the informant’s
veracity or his basis of knowledge.

        Our supreme court has explained that the Fourth Amendment to the United States
Constitution requires that search warrants issue only “upon probable case, 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). In this state “a finding of probable cause
supporting issuance of a search warrant must be based upon evidence included in a written and
sworn affidavit.” Id. Specifically, in “order to establish probable cause, an affidavit must set forth
facts from which a reasonable conclusion may be drawn that the contraband will be found in the
place to be searched pursuant to the warrant.” State v. Norris, 47 S.W.3d 457, 470 (Tenn. Crim.
App. 2000). The affidavit must contain more than conclusory allegations. We note that “affidavits
must be looked at and read in a commonsense and practical manner, and that 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) (citations omitted).

        In State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989), our supreme court adopted 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.”
See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108,
84 S. Ct. 1509 (1964). Specifically, “hearsay information supplied by a confidential informant can


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not support a finding of probable cause unless it also contains 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). 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).

       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 informant
must describe the manner in which he gathered the information, or the informant must describe the
criminal activity with great particularity. State v. Steven Woodward, No. 01C01-9503-CR-00066
(Tenn. Crim. App. at Nashville, Feb. 23, 1996).

        The second prong of the Aguilar-Spinelli test, sometimes referred to as the reliability,
veracity, or credibility prong, deals with the truthfulness of the informant. Under this prong, “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.

      The relevant portions of the affidavit written in support of the search warrant by Agent
George Dettwiller provide as follows:

       Your affiant received the following information from a credible and reliable
       informant, said informant has been in the aforestated residence in the last ten days
       and has seen what informant believed to be a large quantity of cocaine. Said
       informant stated to your affiant that [the Appellant] sold cocaine and that Andrea
       Dowdy was a cocaine user, both of which you affiant knows to be true. Said
       informant has made controlled narcotics purchases in the past for your affiant and is
       familiar with the packaging and appearance of cocaine. Said informant has also
       given information on drug traffickers to other state and federal law enforcement
       agencies that has proven to be true and correct.

        The trial court found that the affidavit in support of the warrant was sufficient on both the
basis of knowledge and veracity prongs. The court specifically found:

       [W]hat is relevant is that the informant had been in the residence in the last ten days
       and seen what the informant believed to be a large quantity of cocaine. That does
       satisfy the one prong as to how this information was acquired, it was by personal
       observation.
               The next part that I think is important is that the informant has made
       controlled narcotic purchases in the past for the affiant and is familiar with the
       packaging and appearance of cocaine.



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               And then, also, the last part establishes the reliability that he’s given
       information on drug traffickers to other state and federal law-enforcement agencies
       that have - - has proven been to be true and correct.
               So, I believe that the Jacumin requirements of the Spinelli and - - all have
       been satisfied and that the warrant does establish probable cause.

         With regard to the basis of knowledge prong, the Appellant asserts “the entire . . . prong is
based upon conclusory statements unsupported by facts.” Specifically, he takes issue with the
statement that the informant saw what he “believed” to be cocaine, asserting that the statement lacks
critical information such as how the drug was packaged or that the informant observed the Appellant
selling drugs. We agree that the assertions that the Appellant sold cocaine and that Andrea Dowdy
was a cocaine user are conclusory as there are no underlying facts to support this statement.
However, we conclude that the basis of knowledge prong was sufficiently established by the
informant’s statement that he was in the Appellant’s house within the last ten days and saw a large
quantity of cocaine, or what he believed to be cocaine. When coupled with the statement that the
informant was familiar with the packaging and appearance of cocaine, these facts are sufficient to
support the informant’s basis of knowledge based upon personal observation. See State v. Annette
Reynolds, No. M2003-02991-CCA-R3-CD (Tenn. Crim. App. at Nashville, Feb. 28, 2005).

        With regard to the veracity prong, the affiant must supply facts which establish the
informant’s inherent credibility or the reliability of the particular information. Credibility is not
established by stating merely that the informant is credible or reliable, but rather by providing
specific factual references to the informant’s past performances as related to credibility. Lowe, 949
S.W.2d at 305 (citing State v. Stephen Udzinski, No. 01C01-9212-CC-00380 (Tenn. Crim. App. at
Nashville, Nov. 18, 1993)). Data or information regarding the number of occasions when the
informant’s previous information has led to convictions supports the conclusion that the informant
was correct and reliable. Id. The requisite volume of detail or information needed to establish the
informant’s credibility is not particularly great. Id.

        The Appellant asserts that the statements establishing this prong are also conclusory and
insufficient. Specifically, he contends that the bare statement that the informant had previously
provided information on drug traffickers, which was “proven to be true and correct,” lacks sufficient
factual basis to conclude that the information provided was reliable or that the informant was
credible. We disagree. The information given provided a sufficient basis for establishing that the
informant had made previous “controlled narcotic purchases” for the affiant, was familiar with the
appearance of cocaine, and had given true and accurate information regarding drug traffickers to both
state and federal agents. We conclude that these facts provide indicia of the informant’s credibility.
Accordingly, we conclude that the affidavit was sufficient to establish probable cause.

                                          CONCLUSION

       Based upon the foregoing, we affirm the judgment of the Montgomery County Circuit Court.



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      ___________________________________
      DAVID G. HAYES, JUDGE




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