        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs August 14, 2012

                STATE OF TENNESSEE v. MICHAEL D. BOONE

                 Appeal from the Criminal Court for Davidson County
                        No. 2010-A-266    Steve Dozier, Judge


                  No. M2011-02435-CCA-R3-CD - Filed June 10, 2013



C AMILLE R. M CM ULLEN, J. concurring.

        Because of the great deference afforded to a magistrate judge when making a probable
cause determination, I concur with the conclusion reached by the majority in this case. I
write separately, however, to express my reluctance in affirming the Defendant’s convictions.
As an initial matter, there are several concerns with the affidavit. It contained a single
introductory statement that the detective “received information that illegal narcotics were at
the premises of 1409 Jackson Street.” However, it failed to provide the source of this
information, the point in time when this information was received by the detective, or any
specific details regarding the target residence or the illegal narcotics activity. Nothing in the
affidavit established that the confidential informant knew that “John” was engaged in the sale
of illegal narcotics from the target residence, that the target residence had been under police
surveillance, or that any surveillance had uncovered illegal narcotics activity at or around the
target residence. There is simply nothing in the affidavit connecting the confidential
informant to the Defendant or the target residence. Finally, the affidavit failed to show any
effort by law enforcement to identify the Defendant or establish that the target residence was,
in fact, the Defendant’s home.

       The only direct information provided in the affidavit was that detectives used a
confidential informant and told the confidential informant to call “John.” The confidential
informant complied and arranged a drug transaction with “John.” Significantly, the
detectives directed the confidential informant to go to the target residence and purchase an
unspecified amount of drugs. The affidavit does not provide a time frame between the phone
call and the drug transaction and does not state whether the phone number provided to the
confidential informant was the Defendant’s. Once at the target residence, detectives
observed “John” walk out the back door, make contact with the confidential informant,
conduct a drug transaction in the confidential informant’s car, and then return to the target
residence. At the motion to suppress hearing, the affiant testified that, prior to obtaining the
search warrant, he had conducted two controlled drug purchases with the Defendant from the
target residence. Significantly, neither of these drug purchases was included in the affidavit,
and the affiant did not provide an explanation for their omission.

         The trial court, relying on State v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009), denied
the Defendant’s motion to suppress stating “Although there was no direct information that
this is the defendant’s house, reasonable inferences are allowed as to where a criminal would
hide evidence of the crime.” It acknowledged that the affidavit contained no information
connecting the Defendant to the target residence. It then reasoned that the Defendant had
“ties” to the target residence because he did not knock at the door upon reentry. The trial
court further distinguished State v. Archibald, 334 S.W.3d 212 (Tenn.Crim.App. 2010), by
finding that the affiant’s testimony at the suppression hearing “indicate[d] that this [was] not
a one time sale.”

        In Saine, the Tennessee Supreme Court joined a number of other state and federal
courts in upholding a probable cause determination based on a reasonable inference that a
drug dealer’s supply of drugs would be located in the drug dealer’s residence. Saine, 297
S.W.3d at 206 (reversing this court’s conclusion, based on State v. Gilbert, No.
01C01-9311-CC-00383, 1995 WL 89697 (Tenn. Crim. App. March 3, 1995), that an affidavit
lacked sufficient probable cause).1 The affidavit in Saine included information from a
confidential informant who had been verified by the affiant to be reliable based on past
exposure to narcotics. Unlike the present case, the confidential informant knew that an
individual known to him as “Ced” sold various amounts of cocaine in the Nashville area.
The affiant confirmed that “Ced” was also known as Cedric Saine, the defendant/target.
Within three days of the warrant, a controlled buy was arranged between the confidential
informant and “Ced”. Detectives observed a male black (later identified as Cedric Saine)
depart from the target residence, arrive at the pre-arranged location, and meet with the
confidential informant. After the meeting, detectives observed “Ced” return to the target
residence. The affiant verified through the Nashville Electric Service database, that the
target residence had electric service in the name of Samantha R. Saine.

        Because the Saine affidavit did not contain direct information connecting the objects
of the search with the defendant’s residence, the Court analyzed whether it was reasonable
for the magistrate to infer that the items of contraband listed in the detective’s affidavit
would be located in Saine’s residence. The Court held that Saine’s departure from his
residence to the prearranged location, the subsequent sale of cocaine to the informant, and
return and entry into his residence, along with the detective’s experience that drug dealers

        1
          In Gilbert, a factually similar case to Saine, this court “rejected a per se rule that if a person is
determined by the magistrate to be a drug dealer, probable cause is shown to search that persons
residence.” 1995 WL 89697 at *5.
ordinarily keep their drugs, the proceeds of drug sales, and financial records related to their
business in their residences, constituted sufficient facts upon which the magistrate could
reasonably infer that evidence of Saine’s drug trafficking would be found inside his
residence. Id.

        I acknowledge, as pointed out by the majority, that Saine did not expressly adopt a per
se rule allowing search warrants based solely on a defendant’s status as a drug dealer.
However, the authority relied upon in Saine clearly allows a target’s status as a known drug
dealer to serve as a reasonable basis for a magistrate to infer that evidence of drug trafficking
will be found in his home. Saine, 297 S.W.3d at 206 (citing 2 Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment § 3.7 (d) n. 165 (4th ed. 2004 & 2005); United
States v. Miggins, 302 F.3d 384, 393-94 (6th Cir. 2002) (collecting cases and stating, “‘[i]n
the case of drug dealers, evidence is likely to be found where the dealers live’”); United
States v. Kenny, 505 F.3d 458, 461-62 (6th Cir. 2007) (citing United States v. McPhearson,
469 F.3d 518, 526 (6th Cir. 2006) and noting long line of precedent permitting “the inference
that a drug dealer keeps evidence of wrongdoing in his residence [if] . . . the affidavit had
‘the independently corroborated fact that the defendants were known drug dealers at the time
the police sought to search their homes.’”). Notably, the only material difference between the
affidavit in Saine and the affidavit in the instant case is that Saine was identified by the
confidential informant as a known drug dealer. Because there was no such information
provided in the affidavit in this case, there was no basis for the magistrate judge to infer that
drugs were being stored at the target residence.

        The majority, in affirming the trial court, relies upon State v. Linda Kay Batts, No.
W2006-00419-CCA-R3-CD, 2007 WL 1015444, at *9 (Tenn. Crim. App., Apr. 4, 2007) and
Allen Jean Stephens v. State, No. W2006-02773-CCA-R3-PC, 2007 WL 2872368, at *5
(Tenn. Crim. App., July 10, 2007), for the proposition that “a single drug sale is a crime and
can establish probable cause for obtaining a search warrant.” These cases are inapplicable.
Instead of challenging the nexus required for the search, each of these cases examine the
veracity and basis of the confidential informant’s knowledge under Aguilar-Spinelli.2
Ultimately, each case concluded that any deficiency in the informant’s veracity or basis of
knowledge was cured by independent police corroboration. In the case sub judice, however,
probable cause was not based upon any information provided by a confidential informant.
Rather, the problem with the instant affidavit is that it fails to provide a basis upon which the
magistrate could reasonably infer that drugs would be located inside the target residence.



       2
          Under Aguillar-Spinelli, “When probable cause for a search is based upon information from a
confidential informant, there must be a showing in the affidavit of both (1) the informant’s basis of
knowledge and (2) his or her veracity.” State v. Jacumin, 778 S.W.2d 430, 436 (Tenn.1989).

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       The majority further emphasizes that the magistrate judge could reasonably infer that
drugs would be located inside the target residence based on the officer’s personal observation
of the Defendant exiting the back door and freely returning to the target residence after the
drug transaction. While this may indeed be true, it is contrary to this court’s holding in State
v. Archibald, 334 S.W.3d 212 (Tenn. Crim. App. 2010), because there was only one such
observation included in the affidavit.

        In Archibald, this court stated, “‘It is necessary for a finding of probable cause that
the time interval between the alleged criminal activity and the issuance of a warrant not be
too great.’” Archibald, 334 S.W.3d at 215 (quoting State v. Baron, 659 S.W.2d 811, 814
(Tenn. Crim. App. 1983)). “‘When illegal activity is ongoing, courts have generally held that
the affidavit is less likely to become ‘stale’ with the passage of time.’” Id. (quoting State v.
Thomas, 818 S.W.2d 350, 357 (Tenn. Crim. App. 1991)). “In making this determination,
courts should consider whether the criminal activity under investigation was an isolated event
or a protracted pattern of conduct. Courts also should consider 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.” State v. Hayes, 337 S.W.3d
235, 257 (Tenn. Crim. App. 2010) (citations omitted)(emphasis added).

       Similar to the instant case, the affidavit in Archibald involved a single controlled drug
purchase. However, the confidential informant actually entered the target address to
purchase the drugs, and as pointed out by the majority, established a nexus between the target
residence and the criminal activity. The drug transaction was monitored by law enforcement.
Within seventy-two hours of this buy, a search warrant was issued and executed for the target
residence. Based on the above authority, we concluded that the affidavit was stale:

       Although the affidavit in this case contained information establishing a nexus
       between the Defendant’s apartment and criminal activity, it contained no
       information tending to establish how long that nexus would persist. It did not,
       for instance, 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. In the instant case, there were no facts in the affidavit supporting an inference
that the Defendant was more than a one-time social guest at the target residence. Consistent
with Archibald, the information within the affidavit became stale as soon as enough time had
passed for the Defendant to leave.

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      Given the aforementioned concerns, I acknowledge the great deference afforded to
the magistrate judge when making a probable cause determination. Based on this
consideration, I concur.




                                              ______________________________
                                              CAMILLE R. McMULLEN, JUDGE




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