         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                          JULY 1998 SESSION
                                                      October 19, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk

STATE OF TENNESSEE,         )
                            ) C.C.A. No. 01C01-9707-CC-00260
     Appellee,              )
                            ) Bedford County
V.                          )
                            ) Honorable W illiam Charles Lee, Judge
                            )
WILLIAM JOEL HAITHCOTE, II, ) (Possession of Cocaine for Resale)
                            )
     Appellant.             )




FOR THE APPELLANT:                FOR THE APPELLEE:

John H. Norton, III               John Knox Walkup
Norton & Smith                    Attorney General & Reporter
One on the Square
Shelbyville, TN 37160             Timothy Behan
                                  Assistant Attorney General
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  William Michael McCown
                                  District Attorney General

                                  Robert G. Crigler
                                  Assistant District Attorney General
                                  One Public Square, Suite 101
                                  Shelbyville, TN 37160



OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge




                              OPINION
       In August 1996, William Joel Haithcote II, was indicted for possession of

cocaine with intent to sell, the manufacture of “crack” cocaine, possession of

marijuana, and possession of drug paraphernalia. The trial court denied the

appellant’s motion to suppress evidence seized from his home pursuant to a

search warrant. The appellant pled guilty to possession of cocaine with intent to

sell; the state dismissed the other charges. Pursuant to Tennessee Rule of

Criminal Procedure 37(b)(2)(I), the appellant certified the question of the validity

of the search warrant to this Court. The appellant states the issue for our review

as follows: whether the affidavit submitted in support of the search warrant

demonstrates that Officer Wilkerson had a reasonable basis for believing that

crack cocaine was being prepared in the appellant’s kitchen. The judgment of

the trial court is affirmed.



       On February 26, 1996, Officer James W ilkerson and Detective Nick

Worthington of the Shelbyville Police Department went with Deputy Jimmy

Parker of the Bedford County Sheriff’s Department to the appellant’s residence

to assist Deputy Parker in serving an arrest warrant on the appellant for assault.

Before Deputy Parker executed the arrest warrant, Officer Wilkerson and

Detective Worthington positioned themselves at the rear of the residence to

prevent the appellant from fleeing out the back door. While doing so, Officer

Wilkerson saw Bill Rex Adams in the house repeatedly dividing a white powder

substance into smaller stacks. Adams then placed the plate of white powder

stacks into the microwave. Detective Worthington also observed this activity.

Officer Wilkerson asked Detective Worthington what the individual was doing.

Detective Worthington said that they were processing cocaine into “crack.”

Detective Worthington has extensive training and experience in drug

enforcement. Officer Wilkerson knew that Adams had been involved in prior

illegal narcotics activities.




                                         -2-
        In the meantime, Deputy Parker had placed the appellant in custody.

The appellant had wisely gone quickly and quietly with Deputy Parker when

Parker executed the arrest warrant. Officer W ilkerson and Detective

Worthington were left at the scene having observed what they believed to be

criminal activity. They decided to get a search warrant, apparently because they

thought that Adams had firearms in his possession. Officer Wilkerson left to get

the warrant. Detective Worthington stayed at the house to make further

observations and to prevent anyone from leaving the house. Shortly thereafter,

Adams and two males emerged from the house and got into a Chevrolet Blazer.

Detective Worthington approached the vehicle and asked them to stop. Adams

attempted to flee in the vehicle, running into Detective Worthington’s leg with the

door of the vehicle. Detective Worthington fired his weapon into the vehicle,

striking Adams in the back.



       Meanwhile, Officer Wilkerson went to the police station to draft the

application for the search warrant. The affidavit given by Officer W ilkerson in

support of the warrant provides in pertinent part:



       3. Immediately prior to the said Jimmy Parker knocking on the
       front door of the said location to attempt to serve said arrest
       warrant, Detective Nick Worthington and I took up a position at
       the back door of said residence in order to prevent the subject
       of the arrest warrant from fleeing from the back door.

       4. While I was assisting in securing the rear portion of the
       residence there was an individual in said residence known to
       me as Bill Rex Adams, in said residence, repeatedly dividing
       a white powder substance that I believed to be cocaine, into
       smaller separate stacks and once the said, Bill Rex Adams,
       had divided the white powder substance into numerous smaller
       portions.[sic] I saw him place the plate of white powder stacks
       into the microwave in said residence and at this point I
       believed him to be preparing Crack Cocaine. The said Bill Rex
       Adams was known to me to be involved in illegal narcotic
       activities prior to this occasion.

       On the basis of this affidavit, a judge issued a warrant authorizing police

to search the appellant’s residence for cocaine base, also known as crack

cocaine. The execution of the search warrant produced powder cocaine, drug

paraphernalia, and marijuana cigarette butts or joints.


                                        -3-
       The appellant filed a motion to suppress the evidence seized pursuant to

the execution of the search warrant. He alleged that the search warrant was

issued without probable cause and that the warrant was issued based on

materially false statements recklessly made by the affiant. The appellant

claimed that all of his blinds were closed so as to prevent any observations from

the exterior of the house when the officers said that they saw Adams dividing

cocaine. The appellant further claimed that his dog would have barked if anyone

had been as close to the house as the officers claimed that they were. After

conducting a lengthy evidentiary hearing, the trial court denied the motion. The

court found that no statement was recklessly made and that no information was

illegally obtained. The court raised the issue of whether the affidavit contained

an adequate basis to support Officer Wilkerson’s statements. After concluding

that the police officer was not required under the law to state the basis of his

knowledge, the court further denied the appellant’s motion to suppress.



       On appeal, the appellant contends that the trial court erred in overruling

his motion to suppress because Officer Wilkerson did not provide a basis in the

affidavit for his conclusion that drug activity was taking place. The appellant

contends that Officer Wilkerson did not state why he believed that the white

powder substance was cocaine and why he believed that Adams was preparing

crack cocaine. The appellant further argues that because Officer Wilkerson did

not state in the affidavit that he was relying on Detective Worthington’s expertise,

that evidence cannot be considered by this Court.



       The state contends that the analysis in State v. Jacumin, 778 S.W.2d 430

(Tenn. 1989) requiring an affiant to establish the veracity and basis of knowledge

of the source of information in the affidavit does not apply because the

information contained in the affidavit did not come from a confidential informant.




                                         -4-
The state contends that the information in the affidavit establishes that the affiant

had probable cause to believe that criminal activity was afoot. We agree.



       An affidavit is a prerequisite to the issuance of a search warrant. See

Tenn. Code Ann. § 40-6-103 (1990); State v. Johnson, 854 S.W.2d 897 (Tenn.

Crim. App. 1993). The contents of the affidavit must establish probable cause.

See Tenn. Code Ann. § 40-6-104 (1990); Tenn. R. Crim. P. 41(c). “Generally,

probable cause is a reasonable ground for suspicion, supported by

circumstances indicative of an illegal act.” Johnson, 854 S.W.2d at 899. “Only

the probability, and not a prima facie showing of criminal activity is the standard

of probable cause.” State v. Moon, No. 01C01-9401-CC-00023 (Tenn. Crim.

App. filed at Nashville, Sept. 1, 1994). Looking only at the affidavit, we conclude

that Officer Wilkerson’s statements based on his observations establish the

probability that criminal activity was occurring in the appellant’s residence. We

must next determine if the officer was required to state why he thought that he

saw cocaine and why he thought that he observed the processing of cocaine into

crack cocaine.



       When an affiant relies upon information obtained from a confidential

informant to establish probable cause, the information in the affidavit must

establish the basis of the informant’s knowledge and veracity. See Jacumin, 778

S.W.2d at 436. This probable cause requirement is generally referred to as the

two-pronged Aguilar-Spinelli test. See id. “Where the information that the

warrant is based on comes from a ‘citizen informant,’ or [an] ‘informant not from

the criminal milieu,’ the two-pronged test does not apply, and there is a

presumption that the information is reliable.” State v. Moon, No. 01C01-9401-

CC-00023 (Tenn. Crim. App. filed at Nashville, Sept. 1, 1994).



       In State v. Kennedy, 649 S.W.2d 275, 279 (Tenn. Crim. App. 1982),

overruled on different grounds by State v. Holt, 691 S.W.2d 520 (Tenn. 1984),



                                         -5-
the affidavit in question contained a statement from a sheriff that he had

observed marijuana plants growing on the defendant’s property. The defendant

challenged the legality of the warrant because the affidavit failed to state how the

sheriff knew that the plants were contraband. The Court stated that it was not

necessary for the affiant to indicate how he knew that the plant material he

observed was marijuana. “To require the affiant to be absolutely certain would

require laboratory testing. This is not necessary to establish probable cause.”

Id.



       Similarly, under the facts in this case, where the affiant is a law

enforcement officer and his information is based on personal observations and

establishes the probability of criminal activity, the officer is not required to state

the basis of his knowledge.



       The judgment of the trial court is AFFIRMED.




                                                _____________________________
                                                PAUL G. SUMMERS, Judge


CONCUR:




__________________________

                                          -6-
DAVID G. HAYES, Judge




__________________________
JERRY L. SMITH, Judge




                             -7-
