            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        JANUARY SESSION, 1998



                                                             FILED
STATE OF TENNESSEE,         )
                            )    No. 02C01-9701-CC-00039 March 20, 1998
      Appellee              )
                            )    HAYWOOD COUNTY              Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
vs.                         )
                            )    Hon. Dick Jerman, Jr., Judge
JOE TYUS,                   )
                            )    (Possession of Schedule II
      Appellant             )    and Schedule VI controlled
                            )    substances with the intent
                            )    to sell)


For the Appellant:               For the Appellee:

William D. Bowen                 Charles W. Burson
Asst. Public Defender            Attorney General and Reporter
107 South Court Square
Trenton, TN 38382                Deborah A. Tullis
                                 Assistant Attorney General
                                 Criminal Justice Division
Tom W. Crider                    450 James Robertson Parkway
District Public Defender         Nashville, TN 37243-0493


                                 Clayburn L. Peeples
                                 District Attorney General
                                 109 East First Street
                                 Trenton, TN 38382




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                  OPINION



         The appellant, Joe Tyus, appeals from convictions entered by the Haywood

County Circuit Court for felony possessions of Schedule II and Schedule VI controlled

substances with the intent to sell. On September 10, 1996, the appellant pled guilty to

both offenses, reserving the right under Tenn. R. Crim. P. 37(b)(2)(i) to appeal the

following certified questions of law to this court:

         (1) Whether the trial court erred in denying the appellant’s motion to
         reveal the identity of the confidential informant; and

         (2) Whether the affidavit was sufficient to support the issuance of a
         search warrant under the two-prong test of Aquilar - Spinelli.1


         After review, we affirm the trial court’s judgment.



                             I. Identity of the Confidential Informant

         The appellant first argues that the trial court erred in denying his motion to reveal

the identity of the confidential informant relied upon by Deputy Blackwell in his affidavit

used to support the issuance of the warrant to search the appellant’s residence. He

contends that disclosure was essential in order that the informant’s “veracity, credibility,

and/or reliability could be further challenged and tested.”



         Before addressing the merits of any certified question, a reviewing court must

determine whether the certified question of law reserved for appeal is dispositive of the

defendant’s case as required by Rule 37(b)(2). See State v. Preston, 759 S.W.2d 647,

650 (Tenn. 1988); see also State v. Gambrell, No. 01C01-9603-CR-00123 (Tenn. Crim.

App. at Nashville, May 7, 1997). We find that this particular issue concerning the

informant’s identity is not dispositive of the appellant’s case. An issue is dispositive

when the appellate court must either affirm the judgment or reverse and dismiss solely

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           The appellant additionally argues that the affidavit used to obtain the search warrant was
insufficient because it did not state whether the informant was a confidential informant or a citizen
source. This issue was not included within the appellant’s certified question of law and, therefore,
is out side the s cop e of th is Ru le 37( b)(2 )(i) ap pea l. Acc ordin gly, we declin e rev iew a s this issue is
not prop erly before th is court.

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upon the determination of the certified question presented. See State v. Wilkes, 684

S.W.2d 663, 667 (Tenn. Crim. App. 1984). In this case, even if we reversed and

dismissed the trial court’s ruling and ordered divulgence of the informant’s identity, that

fact would not, per se, result in a termination of the criminal proceedings.

Notwithstanding the non-dispositive nature of the appellant’s assertion, we elect to

review this issue.



       The appellant, relying upon Roviaro v. U.S., 353 U.S. 53, 60-61, 77 S.Ct. 623,

628 (1957), argues that, if the disclosure of an informer’s identity “is relevant and

helpful to the defense of an accused” or is “essential to a fair determination of a cause,”

the identity must be divulged. The appellant’s reliance upon Roviaro is misplaced.

First, disclosure of the informant’s identity in Roviaro occurred within the context of the

actual trial. In permitting police officers to withhold an informant’s identity, the United

States Supreme Court has clearly articulated the distinction between a preliminary

criminal proceeding, where for example the question is that of probable cause for the

issuance of a warrant, as opposed to trial where the issue of guilt or innocence is at

stake. United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 2414 (1980);

McCray v. Illinois, 386 U.S. 300, 305, 87 S.Ct. 1056, 1059 (1967). See also Rugendorf

v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 828 (1964). Thus, the rule follows

that the name of the informant need not be disclosed at the suppression hearing “if the

trial judge is convinced, by evidence submitted in open court and subject to cross-

examination, that the officers did rely in good faith upon credible information supplied

by a reliable informant.” McCray v. Illinois at 305, 87 S.Ct. at 1059. See also Aguilar

v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514 (1964). Second, the appellant’s

request for disclosure of the informant’s identity in this case is sought not because it “is

essential to a fair determination of a cause” or because it is relevant to his defense, but

rather, as he states, to test the informant’s credibility.




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       Clearly, under these circumstances and for all of the foregoing reasons, the

appellant’s motion to reveal the identity of the informant is without merit.




          II. Sufficiency of the Affidavit Supporting the Search Warrant

       The appellant’s second issue concerns the validity of the search warrant used

to search his residence.      Specifically, the appellant contends that the affidavit

supporting the issuance of the search warrant is insufficient because it fails both the

veracity and “basis of knowledge” prongs of the Aguilar-Spinelli test. See Aquilar v.

Texas, 378 U.S. at 108, 84 S.Ct. at 1509; Spinelli v. United States, 393 U.S. 410, 89

S.Ct. 584 (1969); State v. Jacumin, 778 S.W.2d 430, 432-36 (Tenn. 1989). The trial

court found that the affidavit underlying the search warrant was sufficient and denied

the appellant’s motion to suppress. The appellant contests this finding.



       Initially, we note that a trial court’s findings of fact on a motion to suppress are

conclusive on appeal unless the evidence preponderates against those findings. State

v. Woods, 806 S.W.2d 205, 208 (Tenn. Crim. App. 1990), perm. to appeal denied,

(Tenn. 1991). In the present case, we agree with the trial court’s findings. Further, we

agree with the court’s application of the law to those facts.



       The affidavit in question states, in pertinent part:

       That I have received information from an informant who has given
       information in the past that has led to drug arrests and convictions said
       informant has seen marijuana and cocaine at the residence of Joe Tyus
       within the past 72 hours



       An affidavit is an indispensable prerequisite to the issuance of any search

warrant. Tenn. Code Ann. § 40-6-103 (1990). Before a search warrant may issue, an

affidavit must set forth, on its face, facts that establish probable cause. Tenn. Code

Ann. § 40-6-104 (1990). Probable cause has generally been defined as a reasonable

ground for suspicion, supported by circumstances indicative of an illegal act. Tenn.

                                          4
Code Ann. § 40-6-104; State v. Johnson, 854 S.W.2d 897, 899 (Tenn. Crim. App.

1993). Probable 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).



       In the present case, the information in the affidavit was supplied by a confidential

source. In such cases, the adequacy of the affidavit is subject to the stringent Aquilar-

Spinelli test:

       (1) whether the affidavit includes a factual allegation that the informant
       is credible or the information is reliable; and

        (2) whether the affidavit contains the basis of the informant’s knowledge.

Jacumin, 778 S.W.2d at 432-36. Again, the appellant contends that the affidavit fails

to satisfy either prong of the Aguilar-Spinelli test. We disagree.



       Generally, proof of the informant’s past performances for or information to law

enforcement is sufficient to satisfy the veracity prong, i.e., the informant’s credibility or

reliability. See State v. Udzinski, No. 01C01-9212-CC-00380 (Tenn. Crim. App. at

Nashville, Nov. 18, 1993); see also State v. Lowe, 949 S.W.2d 300, 305 (Tenn. Crim.

App. 1996), perm. to appeal denied, (Tenn. 1997). For example, data or information

regarding the number of occasions that the informant’s previous information has led to

convictions supports the conclusion that the informant was correct and therefore,

reliable. Lowe, 949 S.W.2d at 305 (citing Udzinski, No. 01C01-9212-CC-00380).

Further, an affidavit which sets forth the types of evidence or contraband to which the

informant’s tips have led the authorities is also looked upon favorably. Id. Clearly,

under these standards, the affidavit, indicating the informant’s prior assistance in

securing convictions for drug offenses, is sufficient to establish the reliability of his

information.




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       Next, under the basis of knowledge prong, the affidavit must reveal sufficient

facts which permit the magistrate to determine whether the informant has a basis for

his information or claim regarding criminal conduct. See Moon, 841 S.W.2d at 338.

In other words, the affidavit must describe the manner in which the informant gathered

the information, or the affidavit must describe the criminal activity of the suspects with

detail. See, e.g., Earls v. State, 496 S.W.2d 464 (Tenn. 1973); State v. Smith, 477

S.W.2d 6 (Tenn. 1972); State v. Vela, 645 S.W.2d 765 (Tenn. Crim. App. 1982).

Information that the confidential informant had, within the last 72 hours, seen illegal

drugs at the appellant’s residence is sufficient to satisfy the basis of knowledge prong

of Aguilar-Spinelli. See, e.g., State v. Love, No. 03C01-9406-CR-00205 (Tenn. Crim.

App. at Knoxville, Feb. 18, 1997). This issue is without merit.



       Accordingly, the judgment of the trial court is affirmed.




                                   __________________________________________
                                   DAVID G. HAYES, Judge



CONCUR:



________________________________
JOE B. JONES, Presiding Judge


________________________________
JOE G. RILEY, Judge




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