         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                     SEPTEMBER 1998 SESSION
                                                     FILED
                                                     December 2, 1998

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,        )
                           ) C.C.A. No. 02C01-9805-CC-00154
      Appellee,            )
                           ) Weakley County
V.                         )
                           ) Honorable William B. Acree, Judge
                           )
JAMES NORMAN USERY,        ) (Possession of Controlled Substance)
                           )
      Appellant.           )




FOR THE APPELLANT:            FOR THE APPELLEE:

Garry Brown                   John Knox Walkup
Attorney at Law               Attorney General & Reporter
Crocker Law Firm
P.O. Box 505                  Peter M. Coughlan
Milan, TN 38358               Assistant Attorney General
                              425 Fifth Avenue 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 FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge
                                    OPINION


       This is an appeal based upon a certified question of law pursuant to

Tennessee Rule of Criminal Procedure 37(b)(2)(iv). Relying on information

supplied by an unnamed informant, Lieutenant Joey Radford of the Greenfield

Police Department swore out an affidavit in support of a warrant to search the

home of the appellant, James Norman Usery. A warrant was issued; and the

ensuing search yielded a small quantity of methamphetamine, marijuana, and

drug paraphernalia. The appellant filed a motion to suppress this evidence,

challenging the validity of both the affidavit and the warrant. Following a hearing,

the trial court overruled the motion. The appellant entered a plea of guilty to

possession of a schedule II controlled substance with intent to sell, reserving the

right to appeal his challenge to the legality of the search. All below agree that

these issues are dispositive of this case.



       The appellant argues that the affidavit failed to establish probable cause

for the issuance of the warrant for two reasons. First, the affiant failed to

establish the reliability or credibility of his informant or provide a basis for the

determination that the informant was a “citizen informant” and, second, the

affidavit failed to describe with sufficient particularity what illegal property the

appellant was alleged to possess. The warrant, he argues, is facially defective

because it fails to describe the property to be seized with sufficient particularity.

We find these issues to be meritless and affirm the judgment of the trial court.



       Lieutenant Radford’s affidavit provided that “A citizen informant has been

in the residence in the past 72 hours and has directly witnessed white powder

substance, green plant material, paraphernalia, weapons, and contraband

associated with the use of controlled substances. This citizen informant is




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familiar with controlled substances.” Under the veracity prong, Lieutenant

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

information from a reliable citizen informant known to the affiant.”



       When, as here, an affidavit is based upon the hearsay statements of an

informant, proof of the veracity of the informant may be subject to one of two

standards. With regard to criminal or professional informants, Tennessee

follows the approach of Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v.

United States, 393 U.S. 410 (1969), which requires a factual showing that the

source is credible or his information reliable. See State v. Jacumin, 778 S.W.2d

430 (Tenn. 1989). On the other hand, when information is supplied by a “citizen

informant” or “an informant not from the criminal milieu,” reliability is presumed,

see State v. Melson, 638 S.W.2d 342 (Tenn. 1982); and “the state is not

required to establish either the credibility of the informant or the reliability of his

information.” State v. Cauley, 836 S.W.2d 411, 417 (Tenn. 1993). Instead, “the

reliability of the source and the information must be judged from all the

circumstances and from the entirety of the affidavit.” Id. (quoting Melson, 638

S.W.2d at 356 (Tenn. 1982)). The affidavit must “intrinsically accredit[] the

informant.” State v. Smith, 867 S.W.2d 343, 348 (Tenn. Crim. App. 1993).



       Under the Jacumin standard, the affidavit in the present case would fail.

Thus, the determinative question is whether the affidavit as a whole, including

the affiant’s description of the informant as “a reliable citizen informant known to

the affiant,” is sufficient to accredit the informant and allow a neutral and

detached magistrate to characterize him or her as a “citizen informant,” making

applicable the more lenient Melson standard.




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       In State v. Smith, 867 S.W.2d 343, 348 (Tenn. Crim. App. 1993), this

Court determined that the Melson standard was inapplicable when “there [was]

nothing in [the] affidavit [stating that the informant] was a bystander witness, a

victim, or otherwise a "citizen informant." We further stated,

            It is incumbent, we think, upon whoever seeks a search
     warrant to include in the affidavit whether the informational
     source, named or confidential, qualifies as a citizen informant.
     Otherwise, the issuing magistrate would not know which
     standard, Jacumin or Melson, to apply. Whether the affidavit
     describes the status of the source directly, by implication, or
     by inference, is immaterial; it must, however, be apparent
     before the less stringent Melson standard can be used to test
     the validity of the warrant.


Id. at 348 (emphasis added).



       In the present case, Lieutenant Radford directly stated that he knew the

informant, that he or she was a reliable person, and that he or she was a citizen

informant. While we might be troubled by the bare conclusory statement of an

affiant that an informant is a citizen informant, that is not the case here.

Although only minimally descriptive, the affiant did state that he knew the

informant, thus giving the magistrate some basis on which to judge the credibility

of the information provided by the affidavit. That is, the magistrate had before

him a person whose credibility he could judge. That person, Lieutenant Radford,

swore that he knew the informant and that he or she was reliable. The

magistrate, therefore, had a substantial basis for crediting the hearsay affidavit.

See Melson, 638 S.W.2d at 354-55.



       Again, the affidavit states that the informant “has been in the residence in

the past 72 hours and has directly witnessed white power substance, green plant

material, paraphernalia, weapons, and contraband associated with the use of

controlled substances. This citizen informant is familiar with controlled




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substances.” The appellant argues that, rather than accredit the informant, this

information is exactly the type that might be expected from a criminal informant

and, therefore, suggests that the informant is other than the typical citizen

informant. We cannot agree. We suspect that many average citizens would

readily recognize illegal drugs and drug paraphernalia. That an informant

recognizes such material is as likely to indicate that he or she watches the

evening news or popular movies as it is to indicate involvement with the criminal

milieu.



          The appellant also argues that the affidavit fails to allege with sufficient

particularity that the appellant possessed illegal property. As quoted above, the

affidavit provides a description of several materials that is consistent with a

description of controlled substances; it states that the informant is familiar with

controlled substances, and it alleges the presence of “contraband associated

with the use of controlled substances.” The appellant argues that the affidavit

describes no illegal items. That is, the appellant argues that the affidavit does not

allege the presence of controlled substances and, even if it does, an allegation of

the presence of controlled substances is only sufficient if it also alleges unlawful

possession. See State v. Johnson, 854 S.W.2d 897, 900 (Tenn. Crim. App.

1993) (finding a reference to “drugs” to be insufficient, as drugs may be either

lawfully or unlawfully possessed). The appellant argues that the only illegal item

alleged by the affidavit to have been in his possession was “contraband.”

Contraband, he notes, is any property that it is unlawful to possess. An affidavit

alleging only the presence of contraband fails to provide probable cause as to

the possession of any particular illegal property, and a warrant issued on such a

basis would constitute a general warrant in violation of Article I Section 7 of the

Tennessee Constitution.




                                            -5-
       While we agree that an affidavit alleging only the presence of contraband

would be insufficient, the affidavit must be read as a whole. See Cauley, 836

S.W.2d at 417. In the present case, the affidavit relates the presence of

substances by a description that is consistent with that of certain controlled

substances. Moreover, it does not merely allege contraband, but rather,

“contraband associated with the use of controlled substances.” We find such

language to be clearly sufficient, when the affidavit is read as a whole, to identify

with particularity the illegal items alleged to have been in the appellant’s

possession.



       Finally, and along similar lines, the appellant argues that the search

warrant is facially defective in that it does not describe the property to be seized

with sufficient particularity. See Tenn. Code Ann. § 40-6-103 (requiring search

warrants to “particularly describ[e] the property”). The warrant authorized a

search for “white powder material, green plant material, paraphernalia, weapons

and contraband to wit.” From the plain language of the warrant, we have no

difficulty in discerning with particularity the items to be seized.



       The judgment of the trial court overruling the appellant’s motion to

suppress is affirmed.




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                                      __________________________
                                      PAUL G. SUMMERS, Judge


CONCUR:




_____________________________
DAVID H. WELLES, Judge




_____________________________
JOE G. RILEY, Judge




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