         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs March 13, 2002

               STATE OF TENNESSEE v. JOHNNY E. GARRETT

                 Direct Appeal from the Criminal Court for Overton County
                           No. 4040 Leon C. Burns, Jr., Judge



                    No. M2001-00540-CCA-R3-CD - Filed March 28, 2002


An Overton County jury convicted the defendant of possession of cocaine for resale, simple
possession of marijuana, and possession of drug paraphernalia. In this appeal, he contends the
search warrant was improperly issued, and the trial court erred by not ordering the state to disclose
the identity of the confidential informant. For the reasons set forth below, we affirm the judgment
of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, JJ., joined.

Gary N. Lovellette (at trial) and Michael H. Knowlton (on appeal), Cookeville, Tennessee, for the
appellant, Johnny E. Garrett.

Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich, Assistant Attorney
General; William Edward Gibson, District Attorney General; and Owen G. Burnett, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                            OPINION

       Detective Kyle Norrod monitored three drug purchases from the defendant by a confidential
informant. Two of the three transactions occurred at the defendant's home. Detective Norrod
searched the informant before each transaction and then listened to the purchases via a wire worn
by the informant. The informant handed Detective Norrod the drugs immediately after each
purchase. On November 6, 1997, about one week after the informant made his last purchase of
cocaine and marijuana from the defendant, Norrod signed an affidavit which stated the following:
         Within the past seven (7) days a reliable and creditable [sic] confidential informant
         has made purchases of Cocaine and Marijuana from [defendant] inside of
         [defendant's home]. Prior to purchasing Cocaine and Marijuana from [defendant]
         said confidential informant was searched by Det. Norrod and found to have no drugs
         or controlled substances of any kind in his possession. Through a wire placed on
         informant Det. Norrod was able to monitor the ... conversation between [defendant]
         and said confidential informant, then the Marijuana and Cocaine was [sic] purchased
         from [defendant] by said confidential informant. After the purchase, said
         confidential informant left [defendant's home] and immediately met with Det. Norrod
         and handed said Marijuana and Cocaine to him. Within the last ninety (90) days,
         said confidential informant has made one (1) other separate and destict [sic]
         controlled purchase of Cocaine from [defendant] [ ] [i]nside of [defendant's home.]
         [S]aid confidential informant was searched by Det. Norrod prior to each of the two
         (2) purchases and no drugs were found in said informants [sic] possession. Each of
         the two (2) purchases were [sic] monitored by Det. Norrod through a wire placed on
         said informant. The Cocaine was handed by said informant to Det. Norrod after each
         of the purchases. Said confidential informant is familiar with the appearance of
         Cocaine and Marijuana from past exposure and personal use.

        Based on Detective Norrod's affidavit, a search warrant was issued. While executing the
search warrant, officers found over 39 grams of cocaine, 3.9 grams of marijuana, scales, and rolling
papers.

      The defendant was subsequently convicted at a jury trial of possession of cocaine over .5
grams with intent to sell, simple possession of marijuana, and possession of drug paraphernalia.


                                             I. SEARCH WARRANT

        The defendant argues Detective Norrod’s affidavit did not establish sufficient probable cause
for the search warrant to issue because: (1) the information was stale; (2) the facts in the affidavit
did not provide a nexus between the crime and the interior of the defendant’s home; (3) the affidavit
did not establish the confidential informant’s veracity as required by State v. Jacumin, 778 S.W.2d
430 (Tenn. 1989); and (4) the affidavit contained false statements. After reviewing the record, we
find the defendant failed to present the first two arguments to the trial court. Since an appellant
cannot change theories from the trial court to the appellate court, these arguments are waived. See
State v. Dooley, 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000). Further, we find no plain error with
regard to these two issues.1 See Tenn. R. Crim. P. 52(b).

         1
           This affidavit alleging a drug purchase within seven days and another w ithin 90 days is sim ilar to an affidavit
found by th is court not to be stale. See State v. Co naster, 958 S.W.2d 357, 361 (Tenn. Crim. App. 1997) (rejecting
staleness argument where affidavit alleged drug purchase “within the past 10 days” and numerous other times during
                                                                                                             (con tinued...)

                                                            -2-
A. Veracity of the Confidential Informant

         The Fourth Amendment warrant requirement demands that a probable cause determination
be made by a neutral and detached magistrate. State v. Valentine, 911 S.W.2d 328, 330 (Tenn.
1995); State v. Moon, 841 S.W.2d 336, 338 (Tenn. Crim. App. 1992). Probable cause has generally
been defined as "a reasonable ground for suspicion, supported by circumstances indicative of an
illegal act." State v. Johnson, 854 S.W.2d 897, 899 (Tenn. Crim. App. 1993). When reviewing the
issuance of a search warrant, this court must determine whether the magistrate had a substantial basis
for concluding that a search warrant would uncover evidence of wrongdoing; the magistrate's
judgment is entitled to great deference on appeal. Jacumin, 778 S.W.2d at 431-32.

        In Jacumin, our supreme court adopted a two-pronged standard for determining whether
probable cause exists under the circumstances presented in the affidavit submitted to the magistrate.
In doing so, the court relied upon the authority of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509,
12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637
(1969), and expressly rejected the "totality of the circumstances" approach found in Illinois v. Gates,
462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Jacumin, 778 S.W.2d at 436. According
to this two-pronged test, when the affiant relies upon hearsay information from a confidential
informant, the magistrate must be convinced that (1) the informant possesses a "basis of knowledge"
concerning the reported events, and (2) the informant was credible or his information reliable. Id.
at 432; Moon, 841 S.W.2d at 338.

         The affidavit and underlying circumstances in this case are somewhat unique. This is not a
case in which an officer relies totally upon information furnished by the informant. Here, the affiant-
officer alleges he personally monitored the two drug transactions which formed the underlying basis
for the search warrant. Thus, many of the facts alleged in the affidavit were based upon the officer’s
personal observations, not hearsay from the informant. To the extent that the officer did rely upon
some hearsay information from the informant, the crucial issue is whether the affidavit establishes
the credibility of the informant “or [that] his information was reliable.” Jacumin, 778 S.W.2d at 432
(quoting Aguilar, 378 U.S. at 114-115, 84 S. Ct. at 1514) (emphasis added); Moon, 841 S.W.2d at
339. Thus, independent police corroboration may be considered in establishing the reliability of the
information. Jacumin, 778 S.W.2d at 436; 2 LaFave, Search and Seizure § 3.3(f), p. 172 (3d ed.
1996).

        The affidavit stated Detective Norrod searched the informant for drugs before each purchase,
listened to the transactions through electronic monitoring, and then took possession of the drugs from
the informant immediately after each transaction. The facts of the instant case are somewhat similar
to those in State v. Maurice Lashaun Nash, No. W2000-02971-CCA-R3-CD, 2002 Tenn. Crim. App.


         1
           (...continued)
the past 90 days or more). We further note that the allegation of the sale of cocaine and marijuana within the last seven
days “inside of [defendant’s] house” provided a sufficient nexus between the drugs and the interior of defendant’s
residence. See generally State v. Vann, 976 S.W .2d 9 3, 10 5 (Tenn . 199 8).

                                                          -3-
LEXIS 112 (Tenn. Crim. App. Feb. 8, 2002, at Jackson). In Nash, an officer conducted surveillance
of the defendant’s residence and monitored drug purchases made through a police informant before
obtaining a search warrant. Id. at *2-4. This court held the officer’s affidavit, which included his
observations and a brief history of the informant’s past assistance to law enforcement, was sufficient
to establish probable cause. Id. at *9-10. In the instant case, we conclude Detective Norrod’s
corroborative personal observations regarding the prior drug purchases, along with the other
information set forth in his affidavit, were sufficient to establish the reliability of the informant’s
information as required by Jacumin. Thus, probable cause existed for the issuance of the search
warrant.

B. Fraudulent Statements

         The defendant also claims Detective Norrod made false statements in his affidavit with intent
to deceive the court. He submits the facts contained in the affidavit vary from both Norrod’s sworn
account in a forfeiture warrant and the facts described in a statement written by the confidential
informant. A search warrant may be invalidated if the affidavit supporting its issuance contains
either a false statement made with the intent to deceive the court or a recklessly made false statement
which is essential to a finding of probable cause. State v. Little, 560 S.W.2d 403, 406-07 (Tenn.
1978).

        In the forfeiture warrant seeking forfeiture of a motorcycle and automobile, Detective Norrod
described two drug purchases made by the confidential informant. One purchase was initiated when
the defendant, driving a motorcycle, met with the informant and told the informant to meet him at
his home to make the purchase. The second purchase was made while the defendant was driving an
automobile. The dates of these two transactions were not set forth in the forfeiture warrant. At the
pretrial motion hearing, Norrod testified he actually monitored three purchases from the defendant,
only two of which were consummated at the defendant’s home. It was those two purchases that were
set forth in the search warrant affidavit.

        The confidential informant’s written statement said the informant went to the defendant’s
home on September 17, 1997, and arranged with the defendant to purchase cocaine. The informant
said he then obtained money from Detective Norrod and returned to the defendant’s home, where
he purchased the drugs from the defendant.

        We find nothing inconsistent between the facts submitted to the magistrate by Detective
Norrod in his search warrant affidavit and the facts described in the other documents. The proof
established there were three separate drug transactions between the informant and the defendant, only
two of which were consummated at the home of the defendant, as stated in the affidavit.

        For these reasons, we agree with the trial court that defendant did not establish there were
any false statements in the affidavit.




                                                 -4-
                      II. DISCLOSURE OF INFORMANT’S IDENTITY

        The defendant further argues the trial court erred in not ordering the state to disclose the
identity of the confidential informant. However, our review of the record indicates this issue was
not properly raised in the trial court. During a pretrial hearing, defense counsel asked Detective
Norrod if he had a written report from the confidential informant. The state objected to the
defendant’s learning the name of the confidential informant. Before the trial court could rule on the
state’s objection, the defendant indicated he would agree to accept a copy of a written statement
made by the confidential informant with the name of the informant “blackened out;” the state agreed.
Detective Norrod then read the informant’s statement into evidence without revealing the
informant’s name in response to the defendant’s request. There is no motion nor any other request
in the record seeking disclosure until the defendant, with different counsel, included and argued it
in his motion for new trial.

        Absent “plain error,” an issue not timely presented to the trial court is waived on appeal. See
Tenn. R. App. P. 36(a); Tenn. R. Crim. P. 52(b); State v. Eldridge, 951 S.W.2d 775, 783-84 (Tenn.
Crim. App. 1997). Our review of the record reveals this issue was not presented to the trial court
prior to trial; therefore, the issue is waived. Further, the record does not establish the trial court
committed “plain error.” Specifically, defendant has failed to establish that disclosure was material
to the offense charged in the indictment; the defendant was not entitled to disclosure for the sole
purpose of attacking the search warrant. State v. Vanderford, 980 S.W.2d 390, 397 (Tenn. Crim.
App. 1997).

       Accordingly, we affirm the judgment of the trial court.


                                                       ___________________________________
                                                       JOE G. RILEY, JUDGE




                                                 -5-
