        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                April 19, 2016 Session

                STATE OF TENNESSEE v. THOMAS BRADEN

              Direct Appeal from the Circuit Court for Maury County
                       No. 23892 Robert L. Jones, Judge



                 No. M2015-00991-CCA-R3-CD – Filed July 27, 2016



The appellee, Thomas Braden, was indicted for possession of cocaine, possession of
marijuana, and possession of Alprazolam, all misdemeanors. He filed a motion to
suppress the evidence, arguing that the affidavit in support of the search warrant for the
home in which the drugs were found was defective because it failed to establish ongoing
criminal activity at the residence. The Maury County Circuit Court granted the motion,
and the State now appeals. Upon review of the oral arguments, the record, and the
parties‟ briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Brent Cooper, District Attorney General; and Patrick Powell, Assistant
District Attorney General, for the appellant, State of Tennessee.

Lee E. Brooks, Spring Hill, Tennessee, for the appellee, Thomas Braden.

                                       OPINION

                                I. Factual Background

       On June 8, 2013, Investigator Jeff Seagroves of the Columbia Police Department
submitted an affidavit in which he provided the following information in support of
issuance of a search warrant:
John and/or Jane Doe . . . is/are in possession of the following
described property, namely: Crack cocaine, crack cocaine
paraphernalia, proceeds from the sale of crack cocaine. [T]o
be searched for in accordance with the Laws of the State of
Tennessee, upon the following described premises, namely[:]

509 White Street, Columbia, Tennessee 38401, being a single
family dwelling. This residence‟s exterior is made of tan
colored vinyl siding with white trim. The front door to the
residence is metal and cream in color. This residence has a
covered front porch with the number 509 clearly displayed on
the front porch pillar just to the right of the front door. This
warrant is to include any and all outbuildings, vehicles, and
yard belonging to or under control of this location and/or
John or Jane Doe. . . . [A]nd his/her reasons for such belief
are that affiant has been contacted by a cooperating individual
stating they could purchase crack cocaine from inside the
residence located at 509 White Street, Columbia, Tennessee.
The cooperating individual was met by this affiant and they
were interviewed about them purchasing crack cocaine from
this residence. The cooperating individual advised they could
go to the residence, walk inside and purchase crack cocaine.
The cooperating individual stated they know the people that
live at the residence are selling crack cocaine.

        The cooperating individual was searched for any
narcotics, paraphernalia, or currency, with none being found.
The cooperating individual was provided with an electronic
listening device along with photo copied money to purchase
the crack cocaine. Sgt. John Ussery, Lt. James Shannon and
this affiant rode together monitoring the informant to an area
near White Street. This affiant did watch the cooperating
individual park [in front] of 509 White Street. This affiant
heard, via electronic listening device, the cooperating
individual, enter into the residence, and have a conversation
with both a male and female subject. The conversation
between the cooperating individual and the subjects was
consistent with a drug transaction.          The cooperating
individual was then heard exiting the residence, and seen by
this affiant leaving from the roadway [in front] of the
residence located at 509 White Street. The cooperating
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              individual was met at a predetermined location where this
              affiant recovered the purchased product and electronic
              equipment. This affiant did field test the purchased product
              with Valtox and the field test did show the product to be
              positive for having a cocaine base.

                      A post buy interview with the cooperating individual
              was performed. The cooperating individual stated they went
              to the residence located at 509 White Street and after entering
              the residence they purchased crack cocaine from an unknown
              black male. The informant stated that after the purchase they
              left the residence and met this affiant. The cooperating
              individual was driven by and did point out and confirm that
              509 White Street as the residence they purchased the crack
              from.

                     Due to this affiants experience and training, it is
              known for people selling and storing drugs, to hide both
              narcotics, and proceeds from the sale of narcotics, in out
              buildings, yard, and vehicles in an attempt to keep police and
              others from finding it during the search of their homes.

                     The above facts did occur within . . . the last 72 hours.

Based on the information contained in the affidavit, a magistrate issued a search warrant.
The warrant was executed on June 13, 2014, and the appellee was present during the
search. In December 2014, the Maury County Grand Jury indicted the appellee for
misdemeanor possession of cocaine, misdemeanor possession of marijuana, and
misdemeanor possession of Alprazolam.

       The appellee filed a motion to suppress the drugs found in the residence on the
basis that the affidavit in support of the search warrant failed to establish ongoing
criminal activity at the home and, therefore, failed to establish probable cause. In support
of his argument, the appellee relied on State v. Archibald, 334 S.W.3d 212 (Tenn. Crim.
App. 2010), and State v. Gregory Lamont Hall, M2013-02841-CCA-R3-CD, 2014 WL
4952989 (Tenn. Crim. App. at Nashville, Oct. 3, 2014).

       At a hearing on the motion, the only evidence presented was the search warrant
and the affidavit in question. Counsel for the appellee argued that the affidavit “lin[ed]
up almost to the letter as far as language” with the affidavits in Archibald and Hall in
which this court found that the affidavits were defective. Counsel also argued that the
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affidavit failed to establish the cooperating individual‟s basis of knowledge and veracity.
The State argued that unlike the affidavits in Hall and Archibald, the affidavit in this case
was not “bare-bones” in that Investigator Seagroves stated that the cooperating individual
knew the residents of the home to be selling crack cocaine, that multiple individuals were
heard on the listening device during the transaction, and that the officer conducted a post-
buy interview with the cooperating individual. Defense counsel responded, “We have a
one-time sale. And no evidence at all about the person who made the sale as far as
whether or not he lives there or whether he‟s a visitor there on his way out the door.”

       In a written order, the court found that the affidavit “provide[d] the nexus between
criminal activity and the target house.” Nevertheless, the court concluded that the
affidavit failed to establish probable cause for issuance of the search warrant because the
affidavit failed to show “that the cocaine was obtained from a known person regularly in
the house or that any other cocaine remained in the house when the warrant was sought.”
The court stated that it was unable to distinguish this case from Archibald and Hall and,
therefore, that it was obligated to grant the appellee‟s motion to suppress. Given that the
State‟s case consisted of the drugs found during the search, the court also dismissed the
indictment.

                                       II. Analysis

        The State contends that the trial court erred by granting the motion to suppress
because the court improperly concluded that the affidavit failed to show evidence of
ongoing drug activity at the house. The State contends that the court applied Archibald
and Hall “too broadly” and that the affidavit demonstrates the existence of ongoing
activity at the home. In the alternative, the State argues that if this court concludes that
the trial court properly applied Archibald, then we should overrule or modify that
decision. The appellee claims that the trial court properly granted his motion. We agree
with the State that the affidavit in this case is distinguishable from those in Archibald and
Hall. Nevertheless, we conclude that the trial court properly granted the motion to
suppress.

        In reviewing a trial court‟s determinations regarding a suppression hearing,
“[q]uestions 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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court‟s findings
of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” Id. Nevertheless, appellate courts will review both questions of law and the
trial court‟s application of law to the facts purely de novo. See State v. Hanning, 296
S.W.3d 44, 48 (Tenn. 2009); State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).
Furthermore, the State, as the prevailing party, is “entitled to the strongest legitimate
                                            -4-
view of the evidence adduced at the suppression hearing as well as all reasonable and
legitimate inferences that may be drawn from that evidence.” Odom, 928 S.W.2d at 23.

       Our supreme court has explained that

              [t]he 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. Probable cause 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) (footnote and citations omitted). In
this state, “a finding of probable cause supporting issuance of a search warrant must be
based upon evidence included in a written and sworn affidavit.” Id. In order 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)). To determine whether the
nexus has been sufficiently established, we 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). We note that
“„affidavits must be looked at and read in a commonsense and practical manner‟, and . . .
the finding of probable cause by the issuing magistrate is entitled to great deference.”
State v. Bryan, 769 S.W.2d 208, 211 (Tenn. 1989) (quoting State v. Melson, 638 S.W.2d
342, 357 (Tenn. 1982)).

       In Archibald, the affidavit submitted in support of issuance of the search warrant
described a one-time purchase of narcotics by a confidential informant (CI) from
someone in an apartment. See 334 S.W.3d at 213-14. In determining whether the trial
court properly granted the defendant‟s motion to suppress evidence, this court described
the issue as “whether an affidavit alleging only that drugs were bought in a particular
apartment up to seventy-two hours beforehand can support a warrant for the search of
that apartment and its occupants.” 334 S.W.3d at 215. This court went on to conclude
that although the affidavit contained information establishing a nexus between the
defendant‟s apartment and the criminal activity, it did not contain any information to
establish how long that nexus would persist. Id. For example,
                                             -5-
              [i]t did not . . . contain any facts supporting an inference that
              the person who sold drugs to the CI was more than a one-time
              visitor to the apartment. Likewise, it did not establish that the
              CI observed any drugs other than the drugs he bought. Under
              these circumstances, we must conclude that the information in
              the affidavit became stale as soon as enough time had passed
              for such a one-time seller to leave the apartment.

Id. at 215-16. The court noted, though, that the affidavit would have established probable
cause if it had contained reliable information from the CI to show ongoing criminal
activity. Id. at 216.

       Like Archibald, the affidavit in Hall “only described the CI entering the apartment
and then „momentarily‟ exiting the apartment after making a controlled buy.” Gregory
Lamont Hall, M2013-02841-CCA-R3-CD, 2014 WL 4952989, at *4. As this court
explained,

              The affidavit did not reveal the quantity of drugs received, the
              identity of the seller, the identity of the target location‟s
              residents, or whether the seller was a resident of the target
              location. Likewise, the affidavit did not establish that the
              seller “was more than a one-time visitor to the apartment” or
              that the CI observed other drugs inside the residence.
              Archibald, 334 S.W.3d at 215.

Id. In Hall, the State tried to distinguish the affidavit from that in Archibald by arguing
that the affidavit reliably established ongoing criminal activity at the target residence. Id.
Specifically, the affidavit in Hall stated at the beginning of the affidavit that it “was based
upon either the „affiant‟s personal knowledge, upon information received from other law
enforcement officers, or upon information obtained from other sources as noted‟ and [the
affiant‟s] statement that he had „received information that illegal narcotics were being
sold at‟ the target residence.” Id. However, this court rejected the State‟s argument,
concluding that the affiant police officer‟s statement that drugs were being sold at the          Comment [P1]:
residence was merely a conclusory allegation and could not reliably establish ongoing
criminal activity at the home. Id.

       Like Archibald and Hall, the affidavit in the instant case involved the one-time
sale of narcotics. However, we agree with the State that the affidavit here is
distinguishable from those in the previous cases. First, unlike the affidavit in Archibald,
the affidavit in this case attempted to establish ongoing criminal activity by stating that
                                             -6-
the cooperating individual knew the people living in the home were selling crack cocaine.
Moreover, unlike the affidavit in Hall, said statement was made to show that the
cooperating individual had personal knowledge of the ongoing criminal activity, and
therefore, was more than a mere conclusory allegation by the affiant.

        The State contended at oral argument that the cooperating individual‟s personal
knowledge of the ongoing criminal activity at the target residence, combined with law
enforcement‟s “extra step” of sending the cooperating individual into the home to
confirm the cooperating individual‟s claim, took the need to establish the informant‟s
basis of knowledge and veracity “out of the equation.” However, the State‟s argument
disregards State v. Jacumin, 778 S.W.2d 430, 432 (Tenn. 1989), in which our supreme
court espoused the two-pronged Aguilar-Spinelli test “as the standard by which probable
cause will be measured to see if the issuance of a search warrant is proper under Article I,
Section 7 of the Tennessee Constitution.” 778 S.W.2d at 436; see Spinelli v. United
States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964).1 Specifically,
“hearsay information supplied by a confidential informant can not support a finding of
probable cause unless it also contains factual information concerning the informant‟s
basis of knowledge and credibility.” Henning, 975 S.W.2d at 294-95 (citing Jacumin,
778 S.W.2d at 432, 436). We note that the two-pronged Aguillar-Spinelli test is required
if the hearsay information is being supplied by a criminal informant or a person from a
“criminal milieu.” State v. Smotherman, 201 S.W.3d 657, 662 (Tenn. 2006). The trial
court in this case never addressed whether the cooperating individual was a criminal
informant. However, defense counsel raised Jacumin and Aguillar-Spinelli at the
suppression hearing, and the State did not dispute at the hearing and does not dispute on
appeal that the cooperating individual was a criminal informant. See Tenn. R. App. P.
36(a).

       The affidavit in the present case failed to provide any basis of knowledge and
veracity for the cooperating individual‟s claim that the residents were conducting
ongoing drug sales from the home and, therefore, is not reliable. Thus, as in Archibald,
we conclude that the affidavit failed to show how long the nexus between the drug
dealing and the residence would exist. Accordingly, the affidavit failed to establish
probable cause for issuance of the search warrant.

      The State contends that we should modify or overrule Archibald. In support of its
argument, the State notes that “the Sixth Circuit, considering the same Defendant and

        1
           We note that the Tennessee Supreme Court is presently considering whether Jacumin will
remain valid in this state. See State v. Jerry Lewis Tuttle, No. M2014-00566-SC-R11-CD (Tenn. Feb. 18,
2016) (order) (granting State‟s application for permission to appeal and directing parties to brief “whether
this Court should revisit the continuing validity of [Jacumin]”). However, as of this writing, the supreme
court has not yet heard arguments in Jerry Lewis Tuttle.
                                                     -7-
warrant as this court in State v. Archibald, concluded that the warrant was supported by
probable cause. . . . Specifically, the Court concluded „that a single controlled purchase is
sufficient to establish probable cause to believe that drugs are present at the purchase
location.‟” United States v. Archibald, 685 F.3d 553, 558 (6th Cir. 2012). However, our
supreme court has long held that while “„article I, section 7 is identical in intent and
purpose with the Fourth Amendment‟” and, therefore, that “federal cases applying the
Fourth Amendment should be regarded as „particularly persuasive,‟” article I, section 7
may afford citizens of this state even greater protection. State v. Downey, 945 S.W.2d
102, 106 (Tenn. 1997) (quoting Sneed v. State, 423 S.W.2d 857, 860 (1968) and citing
State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989) and Miller v. State, 584 S.W.2d 758
(Tenn. 1979)). Moreover, Archibald is a published opinion and, therefore, controlling
authority. See Tenn. Sup. Ct. R. 4(G)(2). Thus, if our supreme court desires to modify or
overrule Archibald, it can grant certiorari in the instant case.

                                         III. Conclusion

       Based upon the oral arguments, the record, and the parties‟ briefs, we conclude
that the trial court properly granted the appellee‟s motion to suppress. Hence, the
appellant is not entitled to relief.

                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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