        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                     SEPTEMBE R SESSION, 1998
                                                           FILED
                                                            August 4, 1999
STATE OF TENNESSEE,        )   C.C.A. NO. 02C01-9805-CC-00154
                                                      Cecil Crowson, Jr.
                           )
                                                    Appellate Court Clerk
      Appellee,            )
                           )
                           )   WEAKLEY COUNTY
VS.                        )
                           )   HON. WILLIAM B. ACREE
JAMES NORMAN USERY,        )   JUDGE
                           )
      Appe llant.          )   (Certified Q uestion— Search Wa rrant)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF WEAKLEY COUNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

GARRY BROWN                    JOHN KNOX WALKUP
P.O. Box 505                   Attorney General and Reporter
Milan, TN 38358
                               PETER M. COUGHLAN
                               Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243-0493

                               THOMAS A. THOMAS
                               District Attorney General

                               ALLEN STRAWBRIDGE
                               Assistant District Attorney General
                               P.O. Box 218
                               Union City, TN 38261



OPINION ON REMA ND FILED ________________________

REVERSED; CONVICTION VACATED

DAVID H. WELLES, JUDGE
                  OPINION ON REMAND

      This certified question of law was remanded to us by the Tennessee

Supreme Court for reconsideration in light of its opinion in State v. Stevens, 989

S.W.2d 290 (Tenn. 1999), clarifying when the presumption of reliability may be

triggered by an affidavit pledging informa tion gathe red from a “citizen info rmant.”

Upo n revie w of the court’s decision in Stevens, we modify our opinion to reflect

our decision that the affidavit sworn in this case fails to me et the stan dard to

realize a presu mption of reliability. The refore, we reverse th e order o f the trial

court overruling the mo tion to suppress, vacate the Defendant’s conviction, and

dismiss this case.



      In the original opinion of this Court, penned by former Judge Paul G.

Summers, we upheld the validity of the search based upon information provided

in the affid avit sworn by Lieutenant Joey Radford of the Greenfield Police

Department. That affidavit recounted,

      A citizen informant has bee n in the residenc e in the past 72 h ours
      and has directly witnessed white powder substance, green plant
      mate rial, paraphernalia, weapons, and contraband associa ted with
      the use of controlled substances. This citizen informant is familiar
      with controlled substances.

In addition, Radford checked a box next to the language, “The affiant has

received informa tion from a reliable citize n inform ant.”



      In Tennessee, when an a ffidavit sw orn to p rocure a sea rch wa rrant is

supported by information provided by a confidential informant, a finding of

probable cause requires a factual showing of (1) the basis of knowledge of the



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informa nt, and (2) the reliability or veracity of the inform ation or the informa nt.

See State v. Jacu min, 778 S.W.2d 430 (Tenn. 1989) (adopting the former federal

jurisprudence of Aguilar v. Texas, 378 U.S . 108 (1964), and Spinelli v. United

States, 393 U.S. 410 (1969)).        However, the law of our state recognizes a

distinction between information provided by citizen informants and by the type of

profes siona l, compensated informant from the “criminal milieu”—presuming the

former informa tion inhere ntly reliable. State v. Melson, 638 S.W.2d 342 (Tenn.

1982). To be entitled to this presum ption of a heightened degree of reliability, the

face of the affida vit must demo nstrate that the inform ant is n ot a “crim inal”

informa nt, but rathe r a conce rned citize n.



       Relying on Melson and its proge ny, we affirme d the e xistenc e of pro bable

cause sufficient to s upport th e warran t in this case . See State v. James Norman

Usery, No. 02C01-9805-CC-00154, 1998 W L 8323 54 (Te nn. Crim . App.,

Jackson, Dec. 2, 1 998). Ho wever, in ligh t of the Tennessee Supr eme Cour t’s

opinion in State v. Stevens, 989 S.W.2d 290 (Tenn. 1999), we conclude that the

affidav it does n ot establish probab le cause due to its failure to satisfy the second

Jacu min prong, veracity or reliability of the informant or the information.



       In Stevens, officers obtained a search warrant based upon the following

attested information:

                    An adult conce rned c itizen so urce w ho is
              believed to be credible and liable [sic] and who resides
              in Henry Co unty and ha s family ties to Henry C ounty
              has told the affiant that they had seen
              methamphetamine being stored and cooked within 72
              hours prior to the swearing of this affidavit at the above
              stated residenc e. The citizen to ld the affiant that they
              had seen se veral flask [sic ], tubes, hot plate [sic] and
              several jugs sat [sic] up in the rear room of the

                                          -3-
             residence. The citizen told the affiant of the cooking
             process they had seen and the affiant having
             knowledge of the cooking process, believed the citizen
             to be reliable and truthful in their [sic] information. The
             citizen ask [sic] for n o paym ent for their [sic]
             information and acted on civic duty. Based on the
             above stated information the affiant believes that
             Williams is cooking and storing methamphetamine at
             the said resident [sic].        The citizen source was
             furnished with the finished product of what they [sic]
             had seen being cook ed an d imm ediate ly turned o ver to
             Officer Wyrick and Officer Eaker. The product was
             field tested and product was found to be
             methamphetamine. The affiant asked that the search
             warrant be valid up to 48 hours for securing and
             execu tion of the search warrant to allow D.E.A.
             participation from agents outside the state.

Stevens, 989 S.W .2d at 292 (qu oting the affidavit). The su preme co urt found this

language insufficient to trigger the Melson presumption of reliability, noting that

“[t]he affidavit c ontain ed on ly conclusory allegations that the informant was a

‘concerned citizen source,’ ‘acted on civic duty,’ and ‘ask [sic] for no payment for

their [sic] information.’” Id. at 294. Furtherm ore, stated the court, “There is no

explanation as to why the citizen was in the house while methamphetamine was

being cooked and/or why the citizen was ‘fu rnishe d with th e finish ed pro duct.’ .

. . The unexplained circumstances warrant caution in determining whether the

informant is a pre sumptively reliable citizen .” Id.



      Regarding an informant who is present while narcotics are being

manufactured or packaged, for example, the Stevens court relied on the following

passage from Professor LaFave:

             [A]s a general proposition it is an informant from the
             criminal milieu rather than a law ab iding c itizen w ho is
             most likely to be present under such circumstances.
             This is not to suggest that a person giving information
             about the location of narco tics may never qualify as a
             citizen-informer, for it is sometimes possible to show
             with particularity how a law-abiding individual

                                         -4-
              happened to come upon such knowledge. Rather, the
              point is that in such a case it should not be deemed
              sufficient that the police have alleged in a rather
              conclusory fashion that the person was “an individual
              who is neither a paid nor habitual inform ant,” “a
              respo nsible citizen of utmost character and integrity” or
              “a reputable member of the community.” Perhaps a
              more particularized showing of the law-abiding n ature
              of the per son su pplying the informa tion will suffice.

Id. at 294-95 (quoting Wayne R. LaFave, 2 Search an d Seizure § 3.4(a) (3d ed.

1996) (first emphasis added in Stevens) (seco nd em phas is in orig inal) (footnotes

omitted in Stevens). After deciding that the Melson standard did not apply, the

supreme court h eld that under a tradition al Jacu min standard, the affidavit was

sufficie ntly reliable to esta blish p robab le cau se to s uppo rt the se arch w arran t in

that case. Id. at 295. The court based its finding of reliability on the allegation

that a positive field test was p erforme d on the narcotics given to th e informant.

Id.



       In the case at bar, the information indicating that the informant was a

“citizen-infor mant” does not meet the standard for a presumption of reliability

according to Stevens. Lieutenant Ra dford provided n o more tha n concluso ry

allegations that the informa tion was fu rnished by a “citizen -informa nt know n to

the affiant.” In addition, the lieutenant gave no explanation why the informant had

been present in Defendant’s residence and privy to the exis tence o f white

powder, drug paraphernalia, green plant material, weapons, and contraband

associated with controlled substances.



       Furthermore, resortin g to a tra ditiona l Jacu min analysis of veracity or

reliability, we find no alle gation simila r to that m ade in Stevens which would

factually ind icate the reliability of the inform ant or the informa tion. The veracity

                                            -5-
prong therefore has not been satisfied; and the search wa rrant iss ued in this

case, pursuant to which the principal evidence in this case was seized, was not

supported by probable cause.



      Therefore, we must reverse the order of the trial court overruling the motion

to suppress. We vacate the Defendant’s conviction and remand this case to the

trial court for dism issal of the in dictme nt base d upon lack of pro bable ca use to

suppo rt the searc h warran t.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



(Not Participating)____________________
PAUL G. SUMMERS, JUDGE


___________________________________
JOE G. RILEY, JUDGE




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