        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   November 14, 2013

STATE OF TENNESSEE v. WESLEY CLAYTON NIGHTWINE and RUBY
                      MICHELLE BUSH

                Appeal from the Circuit Court for Montgomery County
                 No. 41201104, 41201103    John H. Gasaway, Judge


               No. M2013-00609-CCA-R3-CD - Filed December 17, 2013




The Defendants, Wesley Clayton Nightwine and Ruby Michelle Bush, were indicted by the
Montgomery County Grand Jury for various drug and firearms offenses following the
execution of a search warrant at Mr. Nightwine’s residence. The Defendants filed a motion
to suppress the evidence seized, and the trial court granted that motion and dismissed the case
as to each defendant. The State appeals, asserting that the search warrant was valid and the
evidence was admissible. Upon review, we affirm the judgment of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and J OHN E VERETT W ILLIAMS, JJ., joined.

Jacob W. Fendley and Debra A. Wall, for the Defendants-Appellees, Wesley Clayton
Nightwine and Ruby Michelle Bush.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; John W. Carney, District Attorney General; and John Finklea, Assistant District
Attorney General, for the Appellee, State of Tennessee.


                                         OPINION

      In March 2012, Officer Luis Zapata, a narcotics investigator with the Montgomery
County Sheriff’s Office, received information that Wesley Clayton Nightwine was selling
marijuana from a residence in Clarksville, Tennessee. Over the course of the next several
months, Officer Zapata and other Montgomery County officers investigated Mr. Nightwine
and conducted several controlled buys of marijuana using a confidential source. In July
2012, the officers obtained and executed a search warrant for a residence located at 115
Emory Street in Clarksville, Tennessee. During this search, the officers discovered cocaine,
marijuana, digital scales, and a 9 mm Ruger semi-automatic pistol. This discovery led to the
arrests and subsequent indictments of Wesley Clayton Nightwine and Ruby Michelle Bush
on drug and firearms charges.

        On January 18, 2013, Mr. Nightwine filed a motion to suppress evidence arising out
of the search of his residence, which Ms. Bush subsequently joined. A hearing was held on
February 7, 2013. No testimony was presented at the hearing. The trial court reviewed the
affidavit in support of the search warrant and heard arguments from counsel regarding the
warrant’s validity. The affidavit presented the following facts in support of probable cause:

       In early March 2012[,] your Affiant received information that Wesley Clayton
       Nightwine was selling marijuana at 823 Stafford St[.] Clarksville[,] Tennessee.

       A criminal history check on Wesley Clayton Nightwine revealed a history of
       numerous narcotic offenses.

       Wesley Clayton Nightwine is listed in the Tennessee Driver License Database
       as having 823 Stafford St[.] in Clarksville[,] Tennessee as his residence.

       During the investigation it was discovered that Wesley Clayton Nightwine had
       moved and actually lives at 115 Emory St[.] Clarksville[,] Tennessee.

       In the fourth full week (seven day period) of March 2012, Agent Oliver
       conducted a controlled narcotics purchase using a confidential source. During
       this controlled narcotics purchase the confidential source purchased [a]
       misdemeanor amount of plant material purported to be marijuana from Wesley
       Clayton Nightwine at 823 Stafford St[.] in Clarksville[,] Tennessee. Agent
       Oliver listened to the aforementioned narcotics purchase. Agent Oliver field
       tested a portion of the plant material and it was positive for marijuana.

       In the second full week (seven day period) of April 2012, Agent Oliver
       conducted a second controlled narcotics purchase using a confidential source.
       During this controlled narcotics purchase the confidential source purchased [a]
       misdemeanor amount of plant material purported to be marijuana from Wesley
       Clayton Nightwine at 823 Stafford St[.] in Clarksville[,] Tennessee. Agent
       Oliver listened to the aforementioned narcotics purchase. Agent Oliver field
       tested a portion of the plant material and it was positive for marijuana.

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In the second full week (seven day period) of July 2012, Agent Oliver
conducted a third controlled narcotics purchase using a confidential source.
During this controlled narcotics purchase the confidential source purchased [a]
misdemeanor amount of plant material purported to be marijuana from Wesley
Clayton Nightwine at 115 Emory St[.] in Clarksville[,] Tennessee. Agent
Oliver listened to the aforementioned narcotics purchase. Agent Oliver field
tested a portion of the plant material and it was positive for marijuana.

In the last 72 hours[,] your Affiant has conducted another controlled narcotics
purchase using a confidential source. During this controlled narcotics
purchase the confidential source purchased [a] misdemeanor amount of plant
material purported to be marijuana from Wesley Clayton Nightwine at 115
Emory St[.] in Clarksville[,] Tennessee. Your affiant listened to the
aforementioned narcotics purchase. Your affiant field tested a portion of the
plant material and it was positive for marijuana.

Before each one of the listed controlled narcotics purchases and at the
conclusion of each one of the listed controlled narcotics purchases[,] the
confidential source’s person and vehicle were searched for weapons and
narcotics. No weapons or narcotics were found on the confidential source’s
person or in their vehicle.

Your affiant[’s] intentions were to purchase felony amounts of marijuana on
each narcotic transaction but was shorted each time by Wesley Clayton
Nightwine.

Said confidential source has provided your Affiant with information on
narcotics sales and manufacturing which has proven to be true and correct.
This confidential source is familiar with the habits and practices of people who
sell illegal narcotics. This confidential source is familiar with the packaging,
distribution and sale of illegal narcotics. This confidential source has proven
to be credible and reliable with the information provided on the sale of illegal
narcotics in the Montgomery County area.




               Experience and Basis of Knowledge of Affiant

Affiant has participated in the execution of over 30 search warrants where the
subject of the search has been an investigation into narcotics trafficking and/or

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       manufacturing. Your affiant has attended numerous federal and state
       workshops and seminars on investigation of drug trafficking. Your affiant has
       participated in numerous drug investigations which have led to felony
       convictions in state court on drug charges. Your affiant is aware of the habits,
       characteristics, and practices of drug offenders.

Following the hearing, the trial court and the prosecutor had the following colloquy:

       THE COURT: Their argument is, as I take it, that the – that the reference to
       the street address is insufficient on its face to provide a sufficient nexus to
       justify going in the house. So my question is: Can you help me out there? Can
       you direct me where it is within this document that this confidential informant
       sets out where he saw the drugs?

       [THE STATE]: It – it does not. The court has to go on the face of the
       document that’s set . . .

       ...

       THE COURT: That’s – that’s the argument – one of the arguments, as I
       understand it, is that if you read this warrant, you don’t – you can’t tell from
       the warrant whether the [confidential informant] saw purchases being made
       inside the residence, on the front porch, out in the yard. Maybe the person –
       maybe the seller had – the defendant had the dope on him and was selling it,
       you know, to people as they drove by in their cars.

               You know, I don’t know whether this was – that’s the problem I have
       with it; the nexus, we all know that you got to have a nexus, you got to have
       a reason to go inside that house because you got to have probable cause to
       believe that the – that the contraband is inside the house. Inside the house. So.
       And I just wasn’t familiar with the warrant. I thought maybe that I wasn’t
       seeing it where it says – where the CI says, you know, I went inside the house;
       I was inside there; I saw three, four people come in on different occasions; he
       sold dope, you know; there’s nothing like that.

Based on this reasoning, the trial court concluded that there was an insufficient nexus to
allow the search of Mr. Nightwine’s residence and entered a written order setting out the
same. In the written order, the trial court found that the affidavit “fail[ed] to state that the
confidential source made the purchases from inside the residence since it use[d] the language
‘at 115 Emory Street,’” and concluded that “no reasonable nexus exists to issue the [s]earch

                                              -4-
[w]arrant to [s]earch inside of the residence.” Accordingly, the trial court granted the
defendants’ motion to suppress and dismissed the case as to each defendant.

       It is from this order that the State now appeals.

                                         ANALYSIS

        On appeal, the State argues that the trial court erred in granting the defendants’ motion
to suppress because the affidavit established a sufficient nexus between the alleged criminal
activity and the residence to be searched. The State maintains that the “distinction the trial
court makes between the buys occurring ‘at’ the residence – as the affidavit states – and not
‘in’ the residence is immaterial,” and that a “common-sense reading” of the affidavit
provided probable cause to search Mr. Nightwine’s residence. The defendants respond that
the trial court did not err in granting the motion to suppress because the affidavit does not
establish a sufficient nexus. Upon review, we agree with the defendants.

          The standard of review applicable to suppression issues involves a mixed question of
law and fact. State v. Garcia, 123 S.W.3d 335, 342 (Tenn. 2003). “[A] trial court’s findings
of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.”
State v. Cox, 171 S.W.3d 174, 178 (Tenn. 2005) (quoting State v. Odom, 928 S.W.2d 18,
23 (Tenn.1996)). However, “[t]he application of the law to the facts found by the trial court
. . . is a question of law which this court reviews de novo.” State v. Yeargan, 958 S.W.2d
626, 629 (Tenn. 1997).

       In analyzing this issue, we are guided by the following well established principles of
Fourth Amendment jurisprudence. “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.” State v. Hayes, 337 S.W.3d 235,
256 (Tenn. Crim. App. 2010). “This Court may consider only the affidavit in reviewing
whether the issuance of a search warrant is based upon probable cause. We may not consider
any evidence that was not included in the affidavit but was known by the affiant or provided
to or possessed by the issuing magistrate.” State v. Smotherman, 201 S.W.3d 657, 661
(Tenn. 2006) (citations omitted). “The magistrate’s judgment is entitled to great deference
on appeal.” Hayes, 337 S.W.3d at 256.

       The United States and Tennessee Constitutions state that search warrants shall issue
only upon probable cause. U.S. Const. amend. IV; Tenn. Const. Art. 1, section 7. “As a
general rule, a search warrant shall be issued only on the basis of an affidavit, sworn before
a ‘neutral and detached’ magistrate, which establishes probable cause for its issuance.” State
v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999) (quoting State v. Jacumin, 778 S.W.2d 430,

                                               -5-
431 (Tenn. 1989)) (citing State v. Moon, 841 S.W.2d 336, 338 (Tenn. Crim. App. 1992)).
A showing of probable cause generally requires “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) (citing Lea v. State, 181 S.W.2d 351, 352 (Tenn. 1944)). “In
order to establish probable cause, an affidavit must set forth facts from which a reasonable
conclusion may be drawn that the contraband will be found in the place to be searched
pursuant to the warrant.” Norris, 47 S.W.3d at 470 (citing State v. Longstreet, 619 S.W.2d
97, 99 (Tenn. 1981)). “A person aggrieved by an unlawful or invalid search or seizure may
move the court pursuant to Rule 12(b) [of the Tennessee Rules of Criminal Procedure] to
suppress any evidence obtained in the unlawful search or seizure.” Tenn. R. Crim. P. 41(g).

        “To establish probable cause, the affidavit must show a nexus among the criminal
activity, the place to be searched, and the items to be seized.” State v. Saine, 297 S.W.3d
199, 206 (Tenn. 2009) (citing State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002); State v.
Smith, 868 S.W.2d 561, 572 (Tenn. 1993)). The Tennessee Supreme Court explained that
when determining whether a sufficient nexus has been established, reviewing courts should
“consider whether the criminal activity under investigation was an isolated event or a
protracted pattern of conduct[,] . . . 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.’” Saine, 297 S.W.3d at 206 (quoting Reid, 91 S.W.3d at 275).
Where the affidavit contains no direct evidence of such a nexus, we must determine “whether
it was reasonable for the magistrate to infer that the items of contraband listed in [the]
affidavit would be located” in the place to be searched. Saine, 297 S.W.3d at 206.

         Relying on State v. Saine, the State argues that the affidavit in the present case
provides facts “showing a sufficient connection between the observed activity and the
location of the search.” In Saine, officers set up a controlled buy using a confidential
informant after receiving information that the defendant was selling cocaine. Id. at 203. The
sale did not take place at the defendant’s residence, but the affidavit explained that officers
“observed [the defendant] leave his residence . . . and followed him as he traveled directly
to the meeting place,” and then “[a]fter the meeting, the [officers] followed [the defendant]
as he returned directly to his residence and entered it.” Id. The affidavit also stated that the
detective, an experienced narcotics detective, had observed that drug dealers ordinarily “hide
their drugs, the proceeds of drug sales, and financial records related to their business in
secure locations such as their . . . residences . . . or other locations which they control.” Id.
The Tennessee Supreme Court acknowledged that the affidavit at issue “did not contain
direct information connecting the objects of the search with [the defendant]’s residence.”
Id. at 206. The court noted, however,




                                               -6-
                [T]here need not be definite proof that the seller keeps his supply in his
       residence. . . . [I]t will suffice if there are some additional facts, (such as that
       . . . the seller or buyer went to his home prior to the sale or after the sale . . .)
       which would support the inference that the supply is probably located there.

Id. (quoting 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
§ 3.7(d) (4th ed. 2004 & Supp. 2008-09) (footnotes omitted)). The court reasoned that the
defendant’s departure from his residence to the prearranged location, the sale of cocaine to
the informant, and the subsequent return to his residence, coupled with the detective’s
experience that drug dealers ordinarily keep drugs and other evidence related to their
business in their home, provided sufficient facts from which a magistrate “could reasonably
infer that the supply of drugs was located in [the defendant]’s residence.” Id.

        In the present case, the State argues that, like in Saine, the affidavit provides facts
“showing a sufficient connection between the observed activity and the location of the
search.” The State asserts that the distinction made by the trial court between “at” the
residence and “in” the residence is immaterial, maintaining that the “location of the sales was
Defendant Nightwine’s house,” and that “Defendant Nightwine was the person making the
sales.” Thus, according to the State, it was reasonable to infer that evidence of the criminal
activity would be located inside of the residence, whether or not the sales actually took place
inside of the residence. The State further argues that the evidence of “repeated sales” by Mr.
Nightwine at 115 Emory Street strengthens the inference that drugs were being stored in Mr.
Nightwine’s residence and supports a finding of a sufficient nexus. The trial court rejected
the State’s arguments and concluded that the affidavit lacked the facts necessary to establish
a sufficient nexus.

        To begin our analysis, we note that the affidavit does not state, as the State suggests,
that the sales took place at Mr. Nightwine’s residence located at 115 Emory Street. Rather,
the affidavit asserts only that the sales took place “at 115 Emory Street” without any further
specificity as to the location of the sales or reference to the residence. The trial court
properly refused to assume facts not provided within the four corners of the affidavit and
instead based its conclusion solely on the contents of the affidavit. The court reasoned that
it is unclear from the affidavit whether the sales took place “in the residence, on the front
porch, out in the yard . . . [or] to people as they drove by in their cars,” and concluded that
“no reasonable nexus exists” to justify the search of the residence. We, likewise, are limited
to the contents of the affidavit on review, and agree with the trial court’s conclusion that the
affidavit fails to establish a sufficient nexus to justify the search of the residence.

        In Saine, the Tennessee Supreme Court placed heavy emphasis on the fact that the
affidavit stated that officers “followed [the defendant] directly from his residence to the

                                                -7-
prearranged location . . . [and] then followed [the defendant] directly back to his residence.”
See Saine, 297 S.W.3d at 206. The court reasoned that based upon these “additional facts,”
it was reasonable to infer that the supply of drugs would be located in the defendant’s
residence. The affidavit in the present case, however, stands in stark contrast to the affidavit
in Saine and fails to supply the “additional facts” necessary to establish a sufficient nexus.
Here, there are no facts to indicate that the officers observed Mr. Nightwine enter or exit the
residence prior to the sales, during the sales, or after the sales. Likewise, there is no
indication that the confidential informant ever entered the residence, observed Mr. Nightwine
inside of the residence, or saw any narcotics inside of the residence. Beyond a physical street
address, the affidavit is completely devoid of any specificity as to the location of the
controlled buys or their relation to the residence located at 115 Emory Street. The only
connection to the residence set out in the affidavit is a conclusory assertion that Mr.
Nightwine resides at that location; however, the affidavit fails to explain the basis of this
conclusion or provide any further connection to the residence. These facts fall far short of
the “additional facts” in Saine and do not support the inference that Mr. Nightwine’s drug
supply would be located in the residence.

        Additionally, the evidence of “repeated sales” by Mr. Nightwine at 115 Emory Street
does not establish or strengthen the inference that drugs were being stored in Mr.
Nightwine’s residence. We acknowledge that the Saine court found persuasive the additional
fact in the affidavit that in the detective’s experience, drug dealers ordinarily keep drugs and
other evidence of their business in the place where they reside. See Saine, 297 S.W.3d at
206-07. Notwithstanding, the affidavit in the present case still fails to establish a sufficient
nexus. As an initial matter, we note that the affidavit does not include any reference to the
affiant’s experience with drug dealers and their routines for hiding evidence of their business.
Even if we were to assume this fact, however, the affidavit fails to sufficiently connect the
residence at 115 Emory Street with Mr. Nightwine or the drug sales. As noted above, the
only connection set out in the affidavit between Mr. Nightwine and the residence is a single
conclusory statement that officers “determined that Wesley Clayton Nightwine . . . lives at
115 Emory Street.” There are no additional facts to connect Mr. Nightwine to the residence
or to establish that he was in control of the residence. Cf. State v. Gleaves, No. M2009-
01045-CCA-R3-CD, 2010 WL 3210397, at *6-7 (Tenn. Crim. App. April 21, 2010)
(reasoning that a confidential informant’s association of the defendant with the target
residence along with officers’ observations of the defendant entering and exiting the target
residence justified the inference that the defendant was “in control” of the residence and
established a sufficient nexus). Without more facts within the affidavit to tie Mr. Nightwine
to the residence at 115 Emory Street, evidence of repeated sales by Mr. Nightwine cannot
justify the search of the residence. The affidavit fails to establish a sufficient nexus between
the criminal activity and the place to be searched. Accordingly, we conclude that the trial
court did not err in granting the defendants’ motion to suppress.

                                              -8-
                                       CONCLUSION

         Based upon the foregoing authorities and analysis, we affirm the judgment of the trial
court.




                                                     ___________________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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