                                                                                          05/17/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               February 6, 2018 Session

     STATE OF TENNESSEE v. WILLIAM ZACHARY WEATHERLY

                   Appeal from the Circuit Court for Dyer County
                    No. 16-CR-265      R. Lee Moore, Jr., Judge
                     ___________________________________

                           No. W2017-01014-CCA-R3-CD
                       ___________________________________


In this appeal, we address the constitutionality of police officers’ search of trash located
within the curtilage of the home of the Defendant, Williams Zachary Weatherly. The
police officers utilized evidence obtained from the Defendant’s trash to secure a search
warrant for the Defendant’s home and vehicle. As a result of evidence seized from the
Defendant’s trash and during the execution of the search warrant, the Defendant was
charged with possession with the intent to sell or deliver more than one-half ounce of
marijuana and possession of a firearm during the commission of a dangerous felony. The
Defendant filed a motion to suppress. Following a hearing, the trial court granted the
motion, finding that the warrantless search of the Defendant’s trash was unconstitutional
and that the search warrant failed to establish probable cause. The State appealed. Upon
reviewing the record and the applicable law, we affirm the trial court’s granting of the
motion to suppress.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Danny Goodman, Jr., District Attorney General; and Karen Burns,
Assistant District Attorney General, for the appellant, State of Tennessee.

Nathan B. Pride and Angela Hopson, Jackson, Tennessee, for the appellee, William
Zachary Weatherly.


                                        OPINION
                    FACTUAL AND PROCEDURAL HISTORY

       On December 9, 2015, officers with the Dyersburg Police Department obtained
and executed a search warrant of the Defendant’s vehicle and home on Keats Street in
Dyersburg, Tennessee. The affidavit in support of the search warrant was prepared by
Officer Chris Pursell and provided as follows:

      1.     I am an officer with the Dyersburg Police Department where I have
      been employed for over seventeen years. Since October of 2013, I have
      been assigned to a specialized unit that investigates a variety of criminal
      cases[,] including the sale and distribution of illegal narcotics. I have been
      involved in numerous narcotic[-]related cases that have led to both
      misdemeanor and felony arrests and convictions. I have participated in the
      execution of numerous search warrants.

The affidavit continues with approximately five pages of Officer Pursell’s knowledge
regarding the general practices and activities of drug traffickers. The affidavit also
provides:

      3.     On December 1, 2015, affiant was contacted by Captain Billy
      Williams of the Dyersburg Police Department in reference to drug activity
      being conducted by Matthew Pinson at Matthew’s residence…. A
      complaint had been made to the Tennessee Department of Children’s
      Services that Matthew Pinson was using and distributing marijuana and
      prescription pills at his residence…. During an investigation into Pinson[,]
      it was revealed that Pinson’s drug supplier was possibly William Zachary
      Weatherly. This [led] your affiant to do a “trash pull” in order to gather
      corroborating evidence on this information.

      Your affiant checked with the City of Dyersburg Public Works Department,
      John Damesworth[,] who indicated that Tuesday was a regularly scheduled
      trash pickup for Keats St. Damesworth indicated that trash is regularly
      picked up on Keats St. on Tuesday between the hours of 9 and 10 [a.m.].
      On Tuesday, December 8, 2015[,] at approximately 08:40 am, your affiant
      and Officer Thayer did recover 4 bags of trash from the South and East
      sides of the residence…. These bags were then brought to a separate
      location for further inspection. The following w[ere] located in the bags:
      One bag consisted of discarded mail addressed to the names Millie
      Johnson, Millie Johnson Weatherly, William Weatherly, and Zach
      Weatherly at [the residence on] Keats St. One opened plastic vacuum seal
      bag labeled “AF Goo 2” which had a strong odor that would be associated
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      with Marijuana emanating from it. Inside the bag was a small amount of
      green leafy substance which appears to be Marijuana. Research into the
      term “AF Goo” revealed that AF Goo, otherwise referred to as “AF
      Gooey[,]” refers to a strain of Marijuana. A small amount of plant material
      believed to be Marijuana stems and an empty box of plastic sandwich bags
      were also located inside this same trash bag.

      4.      According to the City of Dyersburg records[,] the gas and water
      utilities for [the residence] Keats St[.] are in the name of Millie Johnson
      Weatherly and William Z[.] Weatherly. The last payment made on the
      account was on 10/23/15.

      5.      William Zachary Weatherly’s criminal history shows that he pled
      guilty to Possession of a Schedule VI drug with intent to sell, in October of
      2001 in Newbern[,] Tennessee. He received a judicial diversion for this
      charge.

       The Defendant filed a motion to suppress evidence seized during the execution of
the search warrant, arguing that the affidavit in support of the search warrant failed to
establish probable cause. The Defendant challenged the information provided by the
confidential informant and the constitutionality of the trash collection by the officers.
The State filed a response in which it maintained that the information in the affidavit
established probable cause for the issuance of the search warrant and that the Defendant
did not have a reasonable expectation of privacy in the trash bags.

       During the suppression hearing, Dyersburg Police Officer Chris Pursell testified
that he had been a police officer for almost nineteen years and was assigned to the Street
Crimes Unit, which investigated drug-related offenses. He stated that in early December
2015, Captain Williams from the Criminal Investigation Division provided officers with
information that the Defendant was possibly supplying drugs to Mr. Matthew Pinson.
Officer Pursell believed Captain Williams received the information from the Department
of Children’s Services.

       Once the officers located the Defendant’s residence, they decided to do a “trash
pull.” An officer contacted the head of trash services in the public works department and
learned that trash was scheduled to be collected on the street where the Defendant lived
on December 8, 2015, between 9:00 and 10:00 a.m. The officers arranged for the use of
a garbage truck for the morning of December 8. At approximately 8:40 a.m., Officer
Mason McDowell drove the truck down the street where the Defendant lived while
Officer Pursell and Sergeant Todd Thayer, dressed as trash collectors, collected trash.

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The officers placed the trash bags collected from other houses on the side of the street for
the actual trash collectors to obtain later.

        Officer Pursell testified that when he reached the Defendant’s house, he observed
the Defendant’s trash beside his house and next to the kitchen door. Trash from the
Defendant’s neighbors was not in his yard or beside his trash. The officers collected four
bags of trash from the Defendant. The officers took the Defendant’s trash to the rear of
their truck and kept it at a location separate from the neighbors’ trash. The officers took
the Defendant’s trash back to their office and searched it.

       Officer Pursell recalled that three of the trash bags did not contain anything of
interest. He stated that the fourth bag contained several pieces of mail or documents with
the name of the Defendant or his wife and a large vacuumed sealed bag that contained a
strong odor of marijuana and green leafy residue that appeared to be marijuana. The bag
was labeled “AFGOO2,” which Officer Pursell stated was, based on his research, a strand
of high-grade marijuana. He also stated that the vacuumed sealed bag looked like it
could hold up to one pound of marijuana. Officers also located marijuana stems and an
empty box of sandwich bags in the trash bag. Officer Pursell explained that sandwich
bags are often used by drug dealers to package small amounts of drugs, especially high
grade drugs, for resale. Although Officer Pursell researched the Defendant’s criminal
history, he could not recall whether the Defendant had any prior criminal convictions.

       Officer Pursell drafted an affidavit and obtained a search warrant on December 9,
and officers executed the search warrant on the same day. The officers knocked on the
front door and broke down the door when no one answered. The Defendant was standing
in the hallway and partially inside a bathroom doorway. The officers announced why
they were there, ordered the Defendant to the ground, and took him into custody. The
Defendant’s wife also was present. The officers located a Charter Arms .38 caliber
revolver, which Officer Pursell believed was loaded, inside the bathroom. The officers
located three sandwich bags containing a total of seventy grams of marijuana, a small
plastic bowl containing marijuana residue, and a set of digital scales in a dresser in the
master bedroom. They found another sandwich bag containing fifteen grams of
marijuana between the dresser and the wall. In a second bedroom, they located an
unloaded Remington 870 shotgun, a loaded Rock Island .45 caliber handgun, and two
boxes of shotgun shells. In a third bedroom, officers found a mason jar containing
marijuana, a small plastic bowl with a leaf grinder containing marijuana, two glass water
pipes, one small smoking pipe with marijuana residue in it, a small container which
included two whole and several partial Xanax pills, four boxes of shotgun shells, one box
of .45 caliber ammunition, and one box of .38 caliber ammunition. In the kitchen,
officers located a prescription pill bottle containing a small amount of marijuana and a
straight shooter pipe. Officers recovered a 12 gauge shotgun, a .308 rifle, two boxes of
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shotgun shells, and two boxes of 308 ammunition from the Defendant’s vehicle. Cash in
the amount of $229 was on the Defendant’s person.

       On cross-examination, Officer Pursell testified that although the affidavit in
support of the search warrant stated that officers collected the trash bags from the south
and east sides of the Defendant’s home, they collected the bags from trash cans located
beside the southeast corner of the house. Officer Pursell did not know how long the trash
bags were outside of the Defendant’s home before the officers collected them. He
acknowledged that the vacuumed sealed bag contained “[a] pinch” of marijuana residue
when officers located it and that the bag did not state the amount that it had once
contained.

        Officer Pursell stated that the Defendant was not known to him as a drug dealer
and believed this was the first time that he had investigated the Defendant. Officer
Pursell acknowledged that the Defendant’s prior drug offense occurred in 2001 and that
he did not believe that the charge occurred in the house in which the Defendant was
living in 2015. Captain Williams told Officer Pursell that he received information from a
juvenile in the custody of the Department of Children’s Services that Mr. Pinson was
trafficking marijuana and that the juvenile had firsthand knowledge that the Defendant
was supplying Mr. Pinson with marijuana. Officer Pursell acknowledged that he stated in
the affidavit that the Defendant was “possibly” Mr. Pinson’s supplier. Officer Pursell
was unaware of the time that elapsed between Captain Williams’s receipt of the
information and his relaying the information to Officer Pursell. Officer Pursell stated that
he believed Captain Williams relayed the information to him within one day of receiving
it because “we don’t usually sit on that kind of thing for a long time.”

       On redirect examination, Officer Pursell identified a photograph of the
Defendant’s house and the trash can taken when officers executed the search warrant and
stated that the trash can was in the same location as it had been when officers collected
the Defendant’s trash bags. The photograph was taken next to the Defendant’s mailbox
and depicts a driveway and a walkway that led to the front door. The trash can was
located off the driveway and the walkway and on the side of the house in front of a
privacy fence.

       Following the suppression hearing, the trial court entered an order finding that the
affidavit in support of the search warrant failed to establish probable cause and granting
the Defendant’s motion to suppress. The trial court found that the affidavit did not
include any information establishing when the officers received the information from the
confidential informant, the basis of the information, or the veracity of the informant. The
trial court further found that the “trash pull” was unconstitutional because it was
conducted within the curtilage of the Defendant’s home. The trial court subsequently
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entered a consent order dismissing the Defendant’s charges because the State was unable
to proceed with the prosecution without the suppressed evidence. The State filed a timely
notice of appeal.

                                         ANALYSIS

       The State maintains that the trial court erred in granting the Defendant’s motion to
suppress because the Defendant did not have a reasonable expectation of privacy in the
trash and because the search warrant affidavit established probable cause justifying the
issuance of the search warrant. The trial court’s findings of fact at the conclusion of a
suppression hearing are binding upon this court unless the evidence preponderates against
them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “Questions of credibility of the
witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact.” Id. The Defendant,
as the prevailing party in the trial court, “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.” Id. This court’s review of the trial
court’s application of law to the facts is de novo with no presumption of correctness.
State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010).

                         I. Constitutionality of the “Trash Pull”

        The Fourth Amendment to the United States Constitution provides that “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause….” U.S. Const. amend. IV. Article I, section 7 of the Tennessee
Constitution provides that “the people shall be secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures” and that general warrants that lack
particularity or evidentiary support “ought not to be granted.” Tenn. Const. art. I, § 7.
“The purpose of the prohibition against unreasonable searches and seizures under the
Fourth Amendment is to ‘safeguard the privacy and security of individuals against
arbitrary invasions [by] government officials.’” State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). The
search and seizure provision in the Tennessee Constitution is “‘identical in intent and
purpose with the Fourth Amendment.’” State v. Christensen, 517 S.W.3d 60, 68 (Tenn.
2017) (quoting Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968)). Therefore, “‘under
both the federal and state constitutions, a warrantless search or seizure is presumed
unreasonable, and evidence discovered as a result thereof is subject to suppression unless
the State demonstrates that the search or seizure was conducted pursuant to one of the
narrowly defined exceptions to the warrant requirement.’” Id. at 69 (quoting Yeargan,
958 S.W.2d at 629).
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       A search occurs when the government obtains information (1) by violating a
person’s reasonable expectation of privacy, see Katz v. United States, 389 U.S. 347, 360-
61 (1967) (Harlan, J., concurring); Christensen, 517 S.W.3d 77-78; or (2) through
physical invasion into a constitutionally protected area, see Florida v. Jardines, 569 U.S.
1, 5 (2013) (citing United States v. Jones, 565 U.S. 400, 406 n.3 (2012)); Christensen,
517 S.W.3d at 69-71.

       The State argues that the Defendant did not have a reasonable expectation of
privacy in the trash collected and searched by police officers. The State relies upon
California v. Greenwood, 486 U.S. 35, 37, 39 (1988), in which the United States
Supreme Court applied the reasonable expectation of privacy test and held that the Fourth
Amendment did not prohibit “the warrantless search and seizure of garbage left for
collection outside the curtilage of a home.” The Court concluded that the defendants’
exposing their trash to the public was sufficient to defeat their claim of Fourth
Amendment protection and noted that “[i]t is common knowledge that plastic garbage
bags left on or at the side of a public street are readily accessible to animals, children,
scavengers, snoops, and other members of the public.” Id. at 40 (footnotes omitted). The
Court further noted that the defendants placed their trash “at the curb for the express
purpose of conveying it to a third party, the trash collector,” who might have sorted
through the trash or permitted others, such as the police, to do so. Id. The Court
concluded that the defendants did not have a reasonable expectation of privacy in the
inculpatory items included in the trash “having deposited their garbage in an area
particularly suited for public inspection and, in a manner of speaking, public
consumption, for the express purpose of having strangers take it.” Id. at 40-41 (quotation
omitted).

       Unlike the Court in Greenwood, the trial court in the present case found that the
Defendant’s trash was located within the curtilage of his home, a finding that the State
does not challenge on appeal. The constitutional protection afforded to a house extends
to the curtilage, which is “the area immediately surrounding and associated with a
particular house.” Christensen, 517 S.W.3d at 69 (citing Jardines, 569 U.S. at 6; Talley,
307 S.W.3d at 729; State v. Prier, 725 S.W.2d 667, 671 (Tenn. 1987)). The reasonable
expectation of privacy test relied upon by the State “does not subtract anything from the
[Fourth] Amendment’s protections ‘when the Government does engage in [a] physical
intrusion of a constitutionally protected area.’” Jardines, 569 U.S. at 5 (quoting United
States v. Knotts, 460 U.S. 276, 286 (1983) (Brennan, Jr., concurring in the judgment))
(emphasis in original).

      Since the officers’ investigation occurred in a constitutionally protected area, we
must examine whether the “trash pull” was accomplished through “an unlicensed
physical intrusion.” Id. at 7. Not every entry upon curtilage by police officers constitutes
                                           -7-
a search. See id. at 8; Christensen, 517 S.W.3d at 69. For example, “‘the knocker on the
front door is treated as an invitation or license to attempt an entry, justifying ingress to
the home by solicitors, hawkers and peddlers of all kinds.’” Jardines, 569 U.S. at 8
(quoting Breard v. Alexandria, 341 U.S. 622, 626 (1951)). “This implicit license
typically permits the visitor to approach the home by the front path, knock promptly, wait
briefly to be received, and then (absent invitation to linger longer) leave.” Id.
Accordingly, a police officer may approach a home without a warrant and knock because
“that is ‘no more than any private citizen might do.’” Id. (quoting Kentucky v. King, 563
U.S. 452, 469 (2011)).

       However, the scope of an express or implied license to physically intrude into a
constitutionally protected area is limited to both a particular area and a specific purpose.
Jardines, 569 U.S. at 9. While a visitor typically has an implicit license to approach the
front door of a home and knock, “to spot the same visitor exploring the front path with a
metal detector, or marching his bloodhound into the garden before saying hello and
asking permission, would inspire most of us to—well, call the police.” Id. Furthermore,
“the background social norms that invite a visitor to the front door do not invite him there
to conduct a search.” Id. Based on these principles, the United States Supreme Court
held in Jardines that a police officer conducted an unconstitutional search when he used a
drug-sniffing dog on the defendant’s front porch to investigate the contents of the
defendant’s home. Id. at 3, 10.

       In the present case, the police officers entered the curtilage of the Defendant’s
home and approached his trash can, which was located off the driveway and next to the
kitchen door on the right side of the Defendant’s home. The officers retrieved the trash
bags from the trash can for the express purpose of searching their contents. There is no
evidence that the trash can was at a location where trash collectors would have collected
the trash for disposal on that day. We conclude that the police officers entered a
constitutionally protected area and gathered evidence through an unlicensed physical
intrusion. Accordingly, the “trash pull” was an unconstitutional, warrantless search. See
Commonwealth v. Ousley, 393 S.W.3d 15, 33 (Ky. 2013) (holding that police officers
engaged in an unconstitutional search by entering the curtilage of the defendant’s home
without a search warrant and removing trash bags from a trash container).

       We need not decide whether the officers’ investigation violated the Defendant’s
reasonable expectation of privacy. “One virtue of the Fourth Amendment’s property-
rights baseline is that it keeps easy cases easy.” Jardines, 569 U.S. at 11. The fact that
“the officers learned what they learned only by physically intruding on [the Defendant’s]
property to gather evidence is enough to establish that a search occurred.” Id.



                                           -8-
                          II. Validity of the Search Warrant

       We next consider whether the search warrant established probable cause
independent of the evidence discovered during the unconstitutional search of the
Defendant’s trash. Under the “fruit of the poisonous tree” doctrine, evidence that is
obtained through exploitation of an unlawful search or seizure must be suppressed. See
Wong Sun v. United States, 371 U.S. 471, 488 (1963). However, “[p]ursuant to the
independent source doctrine, an unlawful entry does not mandate the suppression of
evidence located inside a residence if the evidence is subsequently discovered following
the execution of a valid warrant based upon facts independent and separate from
information discovered as a result of the unlawful entry.” State v. Carter, 160 S.W.3d
526, 532 (Tenn. 2005); see State v. Clark, 833 S.W.2d 597, 600 (Tenn. 1992).
“[E]vidence seized pursuant to an unreasonable search and seizure cannot be used to
establish probable cause for the issuance of a search warrant.” State v. Vanderford, 980
S.W.2d 390, 399 (Tenn. Crim. App. 1997).

       Under both the United States and Tennessee 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). When the information regarding the unconstitutional
“trash pull” is redacted from the search warrant, the only information that remains is the
officer’s generalized knowledge regarding drug trafficking, a statement that a complaint
was made to the Tennessee Department of Children’s Services that Mr. Pinson was using
and distributing marijuana and prescription pills at his residence, a statement that an
investigation revealed that the Defendant was “possibly” Mr. Pinson’s drug supplier, and
a statement that the Defendant pleaded guilty in 2001 to possession with the intent to sell
a Schedule VI controlled substance.

        The information in a search warrant need not be admissible in a criminal trial and
need not reflect the direct personal observations of the affiant. State v. Tuttle, 515
S.W.3d 282, 301 (Tenn. 2017). Information from a law enforcement officer or a citizen
informant is presumed to be reliable if the affidavit identifies the source of the
information as a police officer or a citizen informant. Id. A presumption of reliability
does not attach to information provided by “an unknown informant or an informant from
the ‘criminal milieu.’” Id. (citations omitted).

        At the time of the suppression hearing in the present case, a supporting affidavit
that included information supplied by an unknown informant or a criminal informant was
required to show (1) the informant’s basis of knowledge; and (2) the veracity of the
informant or the reliability of the informant’s information. See State v. Jacumin, 778
S.W.2d 430, 436 (Tenn. 1989) (citing Spinelli v. United States, 393 U.S. 410, 415-16
                                           -9-
(1969); Aguilar v. Texas, 378 U.S. 108, 114 (1964)). The Tennessee Supreme Court has
since adopted the totality-of-the-circumstances test, which requires the issuing magistrate
to “‘make a practical, commonsense decision whether, given all the circumstances set
forth in the affidavit before him, including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair probability that contraband or evidence of a
crime will be found in a particular place.’” Tuttle, 515 S.W.3d 303-04 (quoting Illinois v.
Gates, 462 U.S. 213, 238 (1983)) (internal quotations omitted). Under the totality-of-the-
circumstances analysis, the informant’s basis of knowledge and veracity or credibility are
no longer separate and independent considerations but are “‘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) (internal quotations omitted). Barebones
affidavits including only conclusory statements remain insufficient, and independent
police corroboration of the information provided by the informant continues to add value
to the affidavit. Id. at 307-08.

       In the present case, the affidavit does not include any information regarding the
basis of the knowledge of the confidential informant who submitted a complaint to the
Tennessee Department of Children’s Services or the informant’s veracity or credibility.
Furthermore, the confidential informant did not implicate the Defendant in any criminal
activity. The affidavit includes a conclusory statement that an investigation revealed that
the Defendant was “possibly” Mr. Pinson’s supplier, but there is nothing in the affidavit
setting forth the details of the investigation or what the investigation specifically
revealed. Furthermore, the Defendant’s criminal conviction occurred more than fourteen
years before the search warrant was sought. Upon considering the totality of the
circumstances, we conclude that the information remaining in the affidavit after the
information relating to the “trash pull” is redacted is insufficient to establish probable
cause for issuance of the search warrant. Accordingly, the trial court was correct in
denying the Defendant’s motion to suppress.

                                    CONCLUSION

        Upon reviewing the record and the applicable law, we uphold the trial court’s
order granting the Defendant’s motion to suppress, and we affirm the judgment of the
trial court.



                                             ____________________________________
                                             JOHN EVERETT WILLIAMS, JUDGE

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