         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    April 25, 2006 Session

                   STATE OF TENNESSEE v. CASEY WATSON

                 Direct Appeal from the Criminal Court for Monroe County
                            No. 04-034 Carroll L. Ross, Judge



                      No. E2005-02054-CCA-R3-CD - Filed July 20, 2006


Defendant, Casey Watson, entered a plea of guilty to one count of possession of 0.5 grams or more
of cocaine, with the intent to sell or deliver, a Class B felony; one count of possession of
dihydrocodeinone with the intent to sell or deliver, a Class D felony; one count of possession of more
than one-half ounce but less than ten pounds of marijuana with the intent to sell or deliver, a Class
E felony; one count of unlawful possession of a weapon with intent to employ it in the commission
of an offense, a Class E felony; and one count of unlawful possession of drug paraphernalia, a Class
A misdemeanor. Defendant was sentenced to concurrent sentences of eight years for his Class B
felony conviction, two years for his Class D felony conviction and for each of his Class E felony
convictions, and eleven months, twenty-nine days for his misdemeanor conviction, for an effective
sentence of eight years. The trial court ordered Defendant to serve his sentences in split
confinement, with probation after serving ninety days in confinement. As a condition of his plea
agreement, Defendant reserved a certified question of law regarding the validity of a search warrant.
Based on our review, we affirm the judgment of the trial court.

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

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

Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Casey Watson.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Jerry N. Estes, District Attorney General; and Chalmers Thompson, Assistant District Attorney
General, for the appellee, the State of Tennessee.
                                              OPINION

I. Background

        On February 27, 2003, police officers searched Defendant’s residence in Monroe County
pursuant to a search warrant. The search revealed the presence of drugs, weapons and drug
paraphernalia, which items served as the basis for Defendant’s indictment for the charged offenses.
Defendant filed a motion to suppress the evidence obtained as a result of the search warrant, arguing
that the affidavit was insufficient because it failed to establish probable cause. After the trial court
denied his motion to suppress, Defendant entered a plea of guilty to the charged offenses. As part
of the plea agreement, Defendant explicitly reserved a certified question of law: “Whether the search
warrant affidavit in this case contains sufficient information for the issuing judge to find probable
cause for the issuance of a search warrant to search 240 Pedigo Road, Madisonville, Monroe County,
Tennessee.”

II. Analysis

       Initially, we note that certified questions of law are governed by Rule 37(b)(2)(i) of the
Tennessee Rules of Criminal Procedure. Rule 37(b)(2)(i) provides that an appellant may appeal
from any judgment of conviction occurring as a result of a guilty plea if the following requirements
are met:

       (A) The judgment of conviction, or other document to which such document refers
       that is filed before the notice of appeal, must contain a statement of the certified
       question of law reserved by defendant for appellate review;

       (B) The question of law must be stated in the judgment or document so as to identify
       clearly the scope and limits of the legal issue reserved;

       (C) The judgment or document must reflect that the certified question was expressly
       reserved with the consent of the state and the trial judge; and

       (D) The judgment or document must reflect that the defendant, the state, and the trial judge
       are of the opinion that the certified question is dispositive of the case.

See also State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003); State v. Preston, 759 S.W.2d 647,
650 (Tenn. 1988). In the case sub judice, Defendant has complied with all of the foregoing
requirements for reserving a certified question of law.

        Defendant’s certified question challenges the trial court’s finding of probable cause based
on the supporting affidavit. Our Supreme Court has explained that:




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       The Fourth Amendment to the United States Constitution requires that search
       warrants issue only “upon probable cause, supported by Oath or affirmation.” Article
       I, Section 7 of the Tennessee Constitution precludes the issuance of warrants except
       upon “evidence of the fact committed.” Therefore, under both the federal and state
       constitutions, no warrant is to be issued except upon probable cause. Illinois v.
       Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); State v. Jacumin,
       [778 S.W.2d 430 (Tenn. 1989)]; [T.C.A.] § 40–6-103. Probable cause has been
       defined as a reasonable ground for suspicion, supported by circumstances indicative
       of an illegal act. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 352 (1944).

State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998).

        “[P]robable cause to support the issuance of a warrant must appear in the affidavit, and
judicial review of the existence of probable cause will not include looking to other evidence provided
to or known by the issuing magistrate or possessed by the affiant.” State v. Moon, 841 S.W.2d 336,
338 (Tenn. Crim. App. 1992) (citations omitted). The reviewing court must determine whether “the
magistrate had a substantial basis for concluding that a search warrant would uncover evidence of
wrongdoing,” and the “magistrate’s determination is entitled to ‘great deference’ by a reviewing
court.” Jacumin, 778 S.W.2d at 431-32.

        In Jacumin, our Supreme court adopted a two-pronged standard for determining whether
probable cause exists under the circumstances presented in the affidavit submitted to the magistrate.
In doing so, the Court relied upon the authority of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509,
12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637
(1969) and expressly rejected the “totality of the circumstances” approach found in Illinois v. Gates,
462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Jacumin, 778 S.W.2d at 436. The Jacumin
court concluded that “if not applied hypertechnically,” the “Aguilar-Spinelli standard, or test, is more
in keeping with the specific requirement of Article 1, Section 7 of the Tennessee Constitution that
a search warrant not issue ‘without evidence of the fact committed.’” Id.

        When the affiant relies upon hearsay information from a confidential informant, the
magistrate must be convinced that: (1) the informant possesses a “basis of knowledge” concerning
the reported events and (2) that the veracity of the information is not in question. Id. at 432; Moon,
841 S.W.2d at 338. In order to meet the first prong of this standard, the affiant must inform the
magistrate of some of the underlying circumstances which led to the informant’s knowledge. Moon,
841 S.W.2d at 338. As for the second prong, the magistrate must be informed of some of the
underlying circumstances from which the affiant concluded that the informant was credible and/or
his information was reliable. Id. The affidavit must contain more than merely conclusory
allegations. Id.

      In the affidavit attached to the challenged search warrant, Officer Matt Conley, who was with
the Madisonville Police Department at the time the search warrant was executed, states:



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       During the past week your affiant has been involved in an investigation of cocaine
       distribution taking place at 240 Pedigo Road, Madisonville, Monroe County,
       Tennessee. According to information gained during the investigation[,] [Defendant]
       is using his residence to sell cocaine from.

       Within the last seventy-two hours your affiant has spoken with a confidential source
       of information, herein referred to as SOI 1. SOI 1 has proven creditable [sic] and
       reliable in the past by providing information that has led to the discovery of narcotics
       and has led to the arrest and conviction of at least one person for a felony narcotic
       offense. SOI 1 stated to your affiant that within the last seventy-two hours he/she
       was at the residence of [Defendant] and observed a large amount of cocaine being
       stored there and in the possession of [Defendant].

        Minimal testimony was presented at the suppression hearing. Officer Conley confirmed that
the affidavit was based on information provided by a confidential informant who had previously
provided information leading to the arrest of a least one individual for a felony narcotic offense. At
the suppression hearing, Defendant argued that the affidavit did not contain a basis for concluding
that the confidential informant was, in fact, familiar with cocaine or could recognize cocaine if he
or she saw it. In addition, Defendant contended that the information received from the confidential
informant was possibly stale based on the wording in the affidavit concerning the time period within
which the confidential informant personally observed cocaine in Defendant’s residence.

       The trial court denied Defendant’s motion to suppress, stating:

       I hear your motion, but I’m going to overrule it. I don’t see this as the same thing as
       some of these other cases, and even though I hear your arguments, I’m not getting
       that out of reading this case. I think [Officer Conley] does say that the informant was
       on the premises within the last 72 hours. I think that’s a common sense reading of
       the language of the time in paragraph (4). The reliability is deter–, is set forth in that
       he’s provided information in the past that led to the discovery of narcotics and to the
       arrest and conviction of at least one person for a felony narcotic offense. A narcotic
       in that sense would be a[n] illegal drug. He says in the last paragraph, last sentence
       that, “He was on the premises with [Defendant] within the last 72 hours and observed
       there a large amount of cocaine being stored in the possession of [Defendant].” It’s
       obvious from his past . . . information provided that he . . . knows what illegal drugs
       are. The officer could, maybe could have been a little bit more explicit in setting
       forth that, but the issue is whether there’s enough to get past your motion of
       dismissal, and [the court] rule[s] that there is.

       The trial court’s denial of a motion to suppress will be upheld unless the evidence
preponderates against the trial court’s findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
The application of the law to the facts found by the trial court, however, is a question of law which
this Court reviews de novo. State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999).


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         Defendant argues that the facts recited in Officer Conley’s affidavit did not sufficiently
establish the “basis of knowledge” prong of the two-prong test set forth in State v. Jacumin.
Defendant submits that the affidavit provides no basis for concluding that the confidential informant
in this case was familiar with cocaine so as to recognize it when seen, or with the packaging or
storing of cocaine. See State v. Hilliard, 906 S.W.2d 466, 468 (Tenn. Crim. App. 1995) (affidavit
stating that confidential informant has “used crack cocaine in the past,” and “[k]nows crack cocaine
and recognizes it when they see it”); State v. Thomas, 818 S.W.2d 350, 353 (Tenn. Crim. App. 1991)
(affidavit stating that confidential informant “is a member of the drug culture and is familiar with
the substance, cocaine”).

        Although under the facts and circumstances presented in Hilliard and Thomas this Court
found that the respective affidavits sufficiently met the “basis of knowledge” test as set forth in
Jacumin, that is not to say that the absence of similar statements in Officer Conley’s affidavit renders
further analysis of the affidavit in the case sub judice unnecessary.

        A magistrate must satisfy himself or herself that the informant’s tip is “something more
substantial than a casual rumor circulating in the underworld, or an accusation based merely on an
individual’s general reputation.” Spinelli, 393 U.S. at 416, 89 S. Ct. at 589. An informant’s personal
observation of a wrongdoing satisfies the “basis of knowledge” prong of the Aguilar and Spinelli
test. See State v. Henning, 975 S.W.2d 290, 295 (Tenn. 1998) (concluding that an affidavit
sufficiently established the basis of an informant’s knowledge when it stated that the informant was
in the presence of a subject who expressed a desire to purchase crack cocaine, that the informant
went into the suspect’s residence, and the informant personally observed the suspect displaying
cocaine); Moon, 841 S.W.2d 336, 339 (holding that the “basis of knowledge” prong was satisfied
by the language “informant . . . had personally seen marijuana being used and/or displayed”); State
v. Steve Cornell Snipes, No. W2004–01619-CCA-R3-CD, 2005 WL 1105187, at *4 n.4 (Tenn. Crim.
App., at Jackson, May 5, 2005), perm. to appeal denied (Tenn. Oct. 24, 2005) (observing that
statement that the informant had personally observed a large quantity of cocaine and marijuana in
the suspect’s premises and possession was sufficient to establish a basis for the informant’s
knowledge); State v. Christopher Lynn Hooser, No. 01C01-9410-CC-00339, 1995 WL 481684, at
*3 (Tenn. Crim. App., at Nashville, Aug. 11, 1995), perm. to appeal denied (Tenn. Feb. 5, 1996)
(informant personally observed a tube of crack cocaine in the suspect’s pocket).

        Thus, we agree with the trial court that the confidential informant’s personal observation of
a large amount of cocaine stored in Defendant’s residence established the basis of the informant’s
knowledge. The affidavit also stated that the informant has provided credible and reliable
information in the past which “has led to the discovery of narcotics and has led to the arrest and
conviction of at least one person for a felony narcotic offense,” which sufficiently establishes the
credibility of the informant. See Hilliard, 906 S.W.2d at 468 (concluding that a statement in the
affidavit that the confidential informant had previously provided information resulting in the arrest
and conviction of known drug dealers satisfied the “veracity” prong of the Aguilar-Spinelli test);
Moon, 841 S.W.2d at 339 (stating that “ordinarily, the general credibility of an informant has been



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shown by his having previously given relevant information to law enforcement which has proven
to be reliable”).

         Defendant contends that the information relied upon in the affidavit was stale, and therefore
the affidavit failed to establish probable cause for the issuance of a search warrant. We observe
initially that the State contends that this issue is outside the scope of the certified question under
consideration and is thus not subject to review. See State v. Preston, 759 S.W.2d 647, 540 (Tenn.
1988) (holding that the certified question of law reserved by the defendant must be stated “so as to
clearly identify the scope and the limits of the legal issue reserved”). In the instant case, the certified
question asks whether the affidavit contains sufficient information for the issuing judge to find
probable cause for the issuance of a search warrant. Timeliness of the information contained within
the supporting affidavit is a component of the magistrate’s probable cause determination. See State
v. Norris, 47 S.W.3d 457, 470 (Tenn. Crim. App. 2000) (holding that the affidavit must contain
information which will allow a magistrate to determine whether the facts are too stale to establish
probable cause at the time issuance of the warrant is sought) (citing State v. Longstreet, 619 S.W.2d
97, 99 (Tenn. 1981)). Defendant raised and argued the issue of staleness at the suppression hearing,
and the trial court made findings of fact on this issue. Thus, we conclude that the issue of staleness
is within the scope of Defendant’s certified question presented on appeal.

        “[A]n affidavit must set forth facts from which a reasonable conclusion may be drawn that
the evidence will be found in the place to be searched pursuant to the warrant.” State v. Vann, 976
S.W.2d 93, 105 (Tenn. 1998). Defendant submits that the wording in the affidavit is ambiguous as
to when the confidential informant was in Defendant’s residence. Officer Conley stated that he had
been involved in an investigation of alleged cocaine distribution from Defendant’s residence
“[d]uring the past week,” and that “[w]ithin the last seventy-two hours,” he spoke to a confidential
informant who stated that “[w]ithin the last seventy-two hours he/she was at the residence” of
Defendant. Defendant contends that one interpretation of the wording of the affidavit indicates that
Officer Conley may have spoken with the confidential informant at the beginning of his week-long
surveillance, not at the end.

        A review of an affidavit supporting the issuance of a search warrant “begins by measuring
its contents under the two-pronged [Aguilar-Spinelli] test in a commonsense, nonhypertechnical
fashion.” Moon, 841 S.W.2d at 339. The trial court found that “a commonsense reading of the
language of the time in paragraph (4)” is that the informant was on the premises within seventy-two
hours of the issuance of the search warrant. See Vann, 976 S.W.2d at 105 (finding that the statement
in the affidavit that the investigating officers had observed certain relevant items in the named
premises “within the previous five days” was sufficiently recent to establish probable cause); State
v. Abernathy, 159 S.W.3d 601, 604 (Tenn. Crim. App. 2004) (finding an affidavit based on a
confidential informant’s observation of crack cocaine in the defendant’s residence within seventy-
two hours of the issuance of the warrant supports a finding of probable cause). The evidence does
not preponderate against the trial court’s finding that the information provided by the confidential
informant in the instant case was sufficiently timely to support a finding of probable cause.



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       Based on our review, we conclude that the affidavit in the case sub judice satisfies both
prongs of the Aguilar-Spinelli test and states facts which were sufficiently recent to establish
probable cause. Accordingly, the trial court did not err in denying Defendant’s motion to suppress,
and Defendant is not entitled to relief on this issue.

                                        CONCLUSION

       After review, we affirm the judgment of the trial court.

                                                      _________________________________
                                                      THOMAS T. WOODALL, JUDGE




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