         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 20, 2001

                  STATE OF TENNESSEE v. BRENDA REDWINE

                 Direct Appeal from the Criminal Court for Johnson County
                            No. 3324    Robert E. Cupp, Judge



                                  No. E2000-01824-CCA-R3-CD
                                          May 25, 2001

The defendant, Brenda Redwine, after pleading guilty to possession of Schedule II drugs and simple
possession of marijuana, properly reserved a certified question of law for our review. The Johnson
County Criminal Court denied her motion to suppress a search warrant that was issued on January
6, 1999. The defendant asserts, by certified question of law, that the search warrant was not properly
issued because the affidavit that was the basis for the warrant contained material misrepresentation
by the officer. After review, we affirm the trial court’s denial of the defendant’s motion to suppress.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and
JAMES CURWOOD WITT, JR., JJ., joined.

H. Randolph Fallin, Mountain City, Tennessee, for the appellant, Brenda Redwine.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Joe C. Crumley, Jr., District Attorney General; and Kenneth Carson Baldwin, Assistant District
Attorney General, for the appellee, State of Tennessee.



                                             OPINION


        The defendant, Brenda Redwine, is appealing the decision of the Johnson County Criminal
Court denying her motion to suppress a search warrant that was issued on January 6, 1999. The
defendant asserts, by certified question of law, that the search warrant in question was not properly
issued because the affidavit that was the basis for the warrant contained material misrepresentations
by the officer. The defendant’s appeal is properly before this court and we affirm the trial court’s
denial of the defendant’s motion to suppress.
                                               Facts

       On January 6, 1999, a search warrant was served on the defendant’s residence in Mountain
City, Tennessee. The basis for issuance of this warrant was an affidavit by Officer Freddie
Ainsworth setting forth the following:
       On January 6, 1999, Ms. Sheila Reece went to the residence of Brenda Redwine and
       her boyfriend, Derick Arnold. She was met at the door and told to come back later.
       Ms. Reece observed marijuana and blue pills lying on the coffee table. Ms. Reece
       has knowledge of Ms. Redwine and Mr. Arnold being drug users. They have tried
       to get her to participate in their drug use. Ms. Reece feels for the two children that
       live at the residence. Furthermore, Ms. Reece is a citizen of Johnson County in good
       standing with only minor traffic violations and no criminal history. On January 6,
       1999, Ms. Reece observed marijuana and blue pills on the coffee table at the
       residence at 148 Hillside Road, Mountain City, TN 37683.
Upon execution of this warrant on the defendant’s residence, two small bags of marijuana were
seized along with assorted pills and other drug paraphernalia. The defendant was arrested on
February 22, 1999, and charged with several counts of possession of drugs and drug paraphernalia.

        On September 3, 1999, a Johnson County grand jury indicted the defendant for possession
of a Schedule VI controlled substance, possession of a Schedule II controlled substance, possession
of a Schedule III controlled substance, possession of a Schedule IV controlled substance, and
possession of drug paraphernalia.

        On October 11, 1999, the defendant filed a motion to suppress the search warrant on the basis
that the affidavit inadequately set forth the status of the informant and the basis of the informant’s
information. The trial court held a hearing on the motion to suppress on October 15, 1999, based
upon the following stipulated facts:
        1. Freddie Ainsworth, employed as an Investigator with the Johnson County
             Sheriff’s Office, was approached by a Ms. Sheila Reece who was previously
             unknown to Investigator Ainsworth. She informed him that she was a friend of
             one Brenda Redwine and that she had been at the residence of Ms. Redwine on
             January 6, 1999 and had observed certain controlled substances that were present
             in the presence of Ms. Redwine’s children and that she was a concerned citizen
             in regards to the welfare of the children and reported the incident to the Sheriff’s
             Office. Investigator Ainsworth not having any previous contact or knowledge of
             this citizen asked her if she had any prior record herself, she denied same and
             reaffirmed that her position was that of good citizen and friend of Ms. Redwine.

       2. Mr. Ainsworth took no independent steps to verify any of the information that
          Ms. Reece had given him or to check any records pertaining to Ms. Reece’s
          background and/or record or lack thereof.




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       3. Investigator Ainsworth put this information in an Affidavit in support of a search
          warrant, and obtained a search warrant, executed same upon the residence of Ms.
          Redwine, the Defendant herein, and recovered certain controlled substances.

       4. After the search warrant had been executed, Investigator Ainsworth found out
          that Ms. Reece had misrepresented the original facts to him in that her
          relationship was with Ms. Redwine’s boyfriend, one Derek Arnold. That she was
          a former girlfriend of this same individual and that she had some animosity
          toward Ms. Redwine, and therefore, had a different agenda than being a good
          citizen when she supplied this information to the officer.

        The trial court took the case on advisement and subsequently denied the motion. On July 21,
2000, the defendant entered a guilty plea, which the trial court accepted. The trial court entered a
judgment which reserved the right to appeal a certified question of law which was set out in an
accompanying order. The trial court entered the order simultaneously to entering the judgment, with
the consent of both parties, setting out the certified question of law of whether the trial court
correctly denied the defendant’s motion to suppress the search warrant. As required, this order also
specifically set forth the defendant’s legal and factual basis for contesting the warrant. Therefore,
the defendant’s appeal as of right is properly before this court pursuant to Rule 3(b) of the Tennessee
Rules of Appellate Procedure and Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure.
See also State v. Preston, 759 S.W.2d 647 (Tenn. 1988).

                                              Analysis

       The defendant contends, by certified question of law, that the trial court erred in denying the
defendant’s motion to suppress the search warrant. Specifically, the defendant contends that the
warrant was not properly issued because the affidavit that was the basis for the warrant contained
material misrepresentations by the officer. In reviewing the denial of the defendant’s motion to
suppress, we apply a preponderance of evidence standard. See State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996).

        Generally, search warrants are issued only on the basis of an affidavit, sworn before a neutral
and detached magistrate, which establishes probable cause to issue the warrant. See State v. Stevens,
989 S.W.2d 290, 293 (Tenn. 1999); State v. Jacumin, 778 S.W.2d 430, 431 (Tenn. 1989). To show
probable cause, there must be “reasonable grounds for suspicion, supported by circumstances
indicative of an illegal act.” Stevens, 989 S.W.2d at 293. For the magistrate to make an adequate
decision regarding the existence of probable cause, the affidavit must “contain more than mere
conclusory allegations by the affiant.” Id.

       Although the defendant argues in her brief that the affidavit was not sufficient on its face
because the issuing magistrate and trial court incorrectly applied the citizen informant standard in
determining that this was a reliable citizen informant, we are limited in our review to the certified



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question of law as to whether the affidavit was insufficient because it contained material
misrepresentations by the officer.

         An affidavit that is sufficient on its face may only be impeached by showing that it contains
“(1) a false statement made with intent to deceive the Court, whether material or immaterial to the
issue of probable cause,” or “(2) a false statement, essential to the establishment of probable cause,
recklessly made.” State v. Little, 560 S.W.2d 403, 407 (Tenn. 1978); see also Franks v. Delaware,
438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667, 672 (1978). When the warrant is valid on
its face, it may only be attacked when the defendant establishes that it was procured through perjury
or coercion. State v. Cannon, 634 S.W.2d 648, 650 (Tenn. Crim. App. 1982). Allegations of
negligence or innocent mistakes are not sufficient to invalidate the warrant. Franks, 438 U.S. at 171.
A defendant must show that the reckless statements were necessary to the finding of probable cause
in order to obtain relief. Id. at 155-56; see also State v. Smith, 867 S.W.2d 343, 350 (Tenn. Crim.
App. 1993). In addition, the defendant has the burden of proving the allegation of perjury or reckless
disregard by a preponderance of the evidence. See Franks, 438 U.S. at 156.

         The crux of the defendant’s argument centers around the officer’s statement: “Mrs. Reece
is a citizen of Johnson County in good standing with only minor traffic violations and no criminal
history.” The defendant claims that this information was a material misrepresentation because the
officer did not investigate the informant. However, as indicated in the stipulation of facts, the officer
did, in fact, ask the informant if she was a citizen in good standing. The remainder of the affidavit
was merely a recitation of what the informant had told the officer. The defendant has failed to show
how this officer made any misrepresentations whatsoever of what the informant told him. Therefore,
the defendant has failed to meet her burden in all respects in proving that the officer made any
misrepresentations.

                                              Conclusion

       Because the defendant has failed to show that the affiant made any misrepresentations as to
what was sworn to in the affidavit, we affirm the trial court’s denial of the defendant’s motion to
suppress the search warrant.




                                                        __________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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