                                                                                        11/29/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                March 7, 2017 Session

          STATE OF TENNESSEE v. RODNEY PAUL STARNES, II

                   Appeal from the Circuit Court for Dyer County
                    No. 16-CR-58       R. Lee Moore, Jr., Judge
                     ___________________________________

                           No. W2016-02491-CCA-R3-CD
                       ___________________________________


Defendant, Rodney Paul Starnes, II, was indicted by the Dyer County Grand Jury for one
count of possession with intent to sell or deliver synthetic cannabinoids. Defendant filed
a motion to suppress, alleging that the affidavit in support of a search warrant was
defective and failed to give rise to probable cause because the affidavit contained no
information establishing a confidential informant’s basis of knowledge. The trial court
granted Defendant’s motion based upon the then controlling authority of State v.
Jacumin, 778 S.W.2d. 430 (Tenn. 1989), and the State appealed. Following our review
of the record and pertinent authorities, including the Tennessee Supreme Court’s recent
decision in State v. Tuttle, 515 S.W.3d 282 (Tenn. 2017), we reverse the judgment of the
trial court and remand for further proceedings in the trial court.

                      Tenn. R. App. P. 3 Appeal as of Right;
               Judgment of the Circuit Court Reversed and Remanded

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; C. Phillip Bivens, District Attorney General; and Lance E. Webb,
Assistant District Attorney General, for the appellant, State of Tennessee.

Jason R. Creasy, Dyersburg, Tennessee (on appeal) and James E. Lanier; District Public
Defender; and Sean P. Day, Assistant Public Defender (at trial) for the appellee, Rodney
Paul Starnes.
                                       OPINION

Suppression hearing

       On July 19, 2016, the trial court conducted a hearing on Defendant’s motion to
suppress. The search warrant and supporting affidavit were made exhibits to the hearing.
The relevant portions of the affidavit stated:

        2. A Confidential Source, hereafter referred to as CS, has contacted the
        affiant concerning suspect Rodney Starnes, “AKA Hot Rod” selling
        synthetic cannabinoids from his residence at 55 Kari Circle. CS stated
        that Mr. Starnes is a well[-]known synthetic cannabinoid dealer and that
        CS has previously bought synthetic cannabinoids from Mr. Starnes.

        3. A vehicle registration query revealed that Rodney Starnes has a gold
        2011 Ford pick[-]up truck currently registered to him at the address of 55
        Kari Circle[,] Dyersburg, TN with an expiration date of 11/30/15. A
        driver’s license check also revealed that 55 Kari Circle Dyersburg, TN
        38024 belongs to Rodney Starnes.

        4. On Monday 11-09-15[,] Inv. Stoney Hughes and Deputy Chief Glen
        Cook were conducting a stationary observation of Mr. Starnes[’s]
        residence on 55 Kari Circle after receiving complaints from neighbors
        that a vehicle pulls up every day at approximately 1530 hours and picks
        up narcotics. At approximately 1528 hours a dark blue Ford sedan
        occupied by a white male and a white female received a package from a
        female individual who exited the residence at 55 Kari Circle. The
        registration on the sedan came back to 210 Holly Springs Cemetery
        Road Dyersburg, TN 38024. The residence belonging to Mr. Starnes[’s]
        brother identified as Michael Bryson.

        5. On 11-12-2015 Deputy Chief Glen Cook, Inv. Stoney Hughes, Inv.
        Ken Simpson, Deputy Danny Petrie, and affiant conducted a second
        stationary observation of the residence at 55 Kari Circle. Deputy Chief
        Glen Cook observed a gold Ford sedan pull up at the residence and the
        driver of the aforementioned vehicle go to the rear door of the residence.
        Then the driver and a female got into the vehicle and left heading
        towards Finley. Affiant observed the passenger of the vehicle not
        wearing a seatbelt and a small child not restrained in the vehicle. Affiant
        then initiated a traffic stop on said vehicle on Oak Street in Finley.
        During the traffic stop a green substance believed to be marijuana was
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        discovered during a consent search of the vehicle. The occupants were
        identified as Jessica Ramirez and Felicia Brooks. Miss Brooks was
        identified as Mr. Starnes[’s] girlfriend. An interview was conducted by
        Inv. Hughes. Miss Brooks admitted that Mr. Starnes sells synthetic
        cannabinoids and she delivered the package to the car observed by Inv.
        Hughes and Deputy Chief Cook. Miss Brooks also advised that Mr.
        Starnes also sells synthetic cannabinoids from his truck. When asked if
        she knew what was inside the package she stated that she had a pretty
        good idea that the package contained synthetic cannabinoids.

        6. Deputy Chief Glen Cook and Inv. Simpson waited at 55 Kari Circle
        for Mr. Starnes to return home from work. While waiting for Mr.
        Starnes at the residence, Michael Bryson’s wife identified as Jamie
        Bryson arrived at the residence. She admitted to Inv. Simpson that she
        and Michael get synthetic cannabinoids from Mr. Starnes. When asked
        when she last got synthetic cannabinoids from Mr. Starnes she stated that
        it had been approximately one month.

       No testimony was presented at the suppression hearing. Defense counsel argued
that the second paragraph of the affidavit contained no statement of reliability and that
neither the informant’s statement that he had previously bought cannabinoids from
Defendant, nor the statement by Felicia Brooks that Defendant sells synthetic
cannabinoids from his truck were sufficiently detailed. The State argued that the
information in the affidavit should be taken as a whole; that the informant’s statement
was corroborated by police observation; and that considered in its entirety, the
information in the affidavit gave rise to probable cause.

       The trial court stated that the affidavit was “poorly drafted” and that “there could
be some information that’s lacking to comply with Aguilar-Spinelli and the Jacumin
decision . . . .” The trial court concluded that the affidavit failed to establish probable
cause and granted Defendant’s motion to suppress.

Analysis

       On appeal, the State contends that the affidavit was sufficient to establish probable
cause. When reviewing a trial court’s ruling on a motion to suppress, “[q]uestions of
credibility of the witnesses, the weight and value of the evidence, and resolutions 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). Accordingly, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
Appellate courts conduct a de novo review of questions of law and the trial court’s
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application of law to facts. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). As the
prevailing party, the State 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.

        Under both the Tennessee and United States Constitutions, no search warrant may
be issued except upon probable cause, which 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). 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.” Id. The
magistrate is then tasked with reading this affidavit “in a commonsense and practical
manner.” State v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009). A finding of probable cause
made by an issuing magistrate is entitled to great deference. State v. Yeomans, 10 S.W.3d
293, 296 (Tenn. Crim. App. 1999) (citations omitted). Accordingly, the standard to be
employed in reviewing the issuance of a search warrant is “whether, in light of all the
evidence available, the magistrate had a substantial basis for finding probable cause.”
State v. Meeks, 876 S.W.2d 121, 124 (Tenn. Crim. App. 1993) (citation omitted).

        Prior to State v. Tuttle, 515 S.W.3d 282 (Tenn. 2017), Tennessee courts
determined whether information provided by a criminal informant gave rise to probable
cause using the two-prong test adopted by the United States Supreme Court in Aguilar v.
Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969). See State
v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989) (adopting 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”). The Aguilar–Spinelli test required the supporting affidavit to show: (1)
the informant’s basis of knowledge; and (2) the veracity of the informant or the reliability
of the informant’s information. Id. This court expounded on this two-prong test in State
v. Moon, 841 S.W.3d 336 (Tenn. Crim. App. 1992), stating:

        Under the first or “basis of knowledge” prong, facts must be revealed
        which permit the magistrate to determine whether the informant had a
        basis for his or her 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. Under the second or “veracity” 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.



                                           -4-
Id. at 338. While the affidavit need not give a large amount of detail regarding the
informant’s credibility, it had to contain “some concrete reason why the magistrate
should believe the informant.” State v. Lowe, 949 S.W.2d 300, 305 (Tenn. Crim. App.
1996). Independent police corroboration could make up for deficiencies in either the
“basis of knowledge” or the “veracity” prong. Moon, 841 S.W.3d at 341.

       In Tuttle, our supreme court considered the continuing viability of Jacumin, the
Tennessee Supreme Court decision embracing the two-prong Aguilar–Spinelli test, and
overruled it, instead adopting the totality-of-the-circumstances analysis established by the
United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983). Tuttle, 515
S.W.3d at 302-08. When doing so, the court reiterated:

        [U]nder 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 [of]
        whether there is ‘probable cause’ to believe that contraband or evidence
        is located in a particular place.”

Id. at 308 (quoting Gates, 462 U.S. at 230). Under this analysis, bare-bones affidavits
containing only conclusory statements remain insufficient, and independent police
corroboration of the details provided by the informant continues to add value to the
affidavit. Id. at 307-08.

        Here, the affidavit indicated the informant had been to the residence located at 55
Kari Circle in Dyersburg and had purchased synthetic cannabinoids from Defendant. The
affidavit stated that Defendant was “a well[-]known synthetic cannabinoid dealer. . . .”
The affidavit also stated that officers staked out Defendant’s residence after receiving
complaints from neighbors that a car pulled up every day at 3:30 p.m. to pick up drugs.
On November 9, 2015, officers observed a car pull up at approximately 3:28 p.m., and a
woman received a package from a female occupant of the house. The vehicle’s
registration was to an address belonging to Defendant’s brother, Michael Bryson. The
affidavit stated that on November 12, 2015, officers staked out Defendant’s residence
again and observed a car pull up, and the driver went to the rear of Defendant’s house.
Officers observed two passengers in the car not wearing seatbelts and stopped the car.
With consent, they searched the vehicle and found marijuana. One of the occupants,
Felicia Brooks, was identified as Defendant’s girlfriend. She told police that Defendant
sold synthetic cannabinoids and that she delivered a package, which she believed
contained synthetic cannabinoids, to the car which officers observed on November 9,
2015. She told officers that Defendant also sold synthetic cannabinoids from his truck.
                                           -5-
Officers waited at Defendant’s home for Defendant to return. While waiting there, Jamie
Bryson, who was identified as Defendant’s sister-in-law, arrived and told officers that she
and Defendant’s brother had gotten synthetic cannabinoids from Defendant one month
prior.

       After reviewing the affidavit and applicable law, we conclude the trial court
improperly granted Defendant’s motion to suppress. The facts set forth in the affidavit
established the informant’s veracity and basis of knowledge, both of which remain highly
relevant considerations under the totality-of-the-circumstances analysis. We conclude the
affidavit provided the magistrate with a substantial basis for determining the issuance of a
search warrant for Defendant’s residence would result in the discovery of synthetic
cannabinoids on the premises. Accordingly, we reverse the judgment of the trial court.

                                     CONCLUSION

        Based on the foregoing, we reverse the judgment of the trial court and remand to
the trial court for further proceedings.


                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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