            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                             MAY 1997 SESSION
                                                             FILED
STATE OF TENNESSEE,           *      C.C.A. # 02C01-9603-CR-00083

      Appellee,               *      SHELBY COUNTY
                                                          September 10, 1997
VS.                           *      Hon. James C. Beasley, Jr., Judge

CLEOPHES CARTER,              *      (Certified Question of Law)
                                                              Cecil Crowson, Jr.
      Appellant.              *
                                                             Appellate C ourt Clerk



For Appellant:                       For Appellee:

Cleophes Carter (Pro Se)             Charles W. Burson
201 Poplar Avenue, 5-E               Attorney General & Reporter
Memphis, TN 38103
(on appeal)                          Ellen H. Pollack
                                     Assistant Attorney General
William Nowlin, Attorney             450 James Robertson Parkway
100 North Mid America Mall           Nashville, TN 37243-0493
Memphis, TN 38103
(at trial)                           Janet Shipman
                                     Assistant District Attorney General
                                     Shelby County District Attorney
                                            General's Office
                                     201 Poplar Avenue, Third Floor
                                     Memphis, TN 38103


OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, JUDGE
                                               OPINION

                 The defendant, Cleophes Carter, was indicted on two charges of

unlawful possession of a controlled substance with the intent to sell and deliver.

When a defense motion to suppress evidence was overruled by the trial court, the

defendant, who had been apprised of his right to reserve a dispositive issue for

appeal, entered a plea of guilt to the unlawful possession of marijuana with the

intent to sell, a Class E felony, and the unlawful possession of cocaine less than

one-half gram, a Class C felony. The trial court imposed sentences of one year and

four years respectively.



                 The single issue presented for review is whether a search warrant for

the residence of the defendant had been validly issued.1 We find no error and affirm

the judgment of the trial court.



                 On March 23, 1994, and based upon information provided by

Detective Paul Harvey, a search warrant was issued for the residence and the

outbuildings at 1709 Kendall in Memphis. The occupant was described as black

male known as Cleo, six feet, approximately 190 pounds, four gold front teeth, and

about twenty-four years of age. The affidavit provided as follows:

                 On March 22, 1994, the affiant talked with a reliable
                 informant of the Memphis, Shelby County, Tennessee,
                 who has given the affiant information regarding illegal
                 activities in connection with narcotics trafficking by the
                 above named person, which has been found to be true
                 and correct and which has resulted in one narcotics
                 seizure of marijuana. This reliable informant stated that
                 within the past five days of March 22, 1994, this reliable
                 informant had been in the above described residence
                 and had seen the above named person storing and

        1
          The single issue addressed in this opinion does not appear to have been properly reserved
under the guidelines set out in State v. Preston, 759 S.W .2d 647 (T enn. 1988) and re -esta blished in
State v. Pendergrass, 937 S.W .2d 834 (Tenn. 1996); however, the issue was not addressed in either
brief. T hus , we have add ressed the m erits. C.f., Bo wlin, 871 S.W .2d 170 (T enn . Crim . App . 1993).



                                                     2
                 selling marijuana in the above described residence.



                 At the suppression hearing it developed that Officer Harvey had not

previously used the informant for a search warrant and had based his opinion of

reliability on the fact that he had monitored the purchase of marijuana by the

confidential informant from the defendant on the day before the search warrant was

issued; the marijuana was, of course, thereupon seized. The record establishes

that the purchase did not result in an arrest of the defendant. The search of the

property pursuant to the warrant yielded two pounds of marijuana and a small

amount of cocaine.



                 The defendant argued that the search warrant failed to establish the

credibility of the confidential informant or the reliability of his information. The trial

court denied the motion to suppress:

                 [T]he court has determined that the affidavit in this matter
                 sufficiently sets out information that a magistrate could
                 rely upon in finding probable cause--namely, that the
                 informant had previously given information resulting in a
                 seizure of marijuana involving the named party in the
                 warrant. A more proper wording might have been a
                 purchase of marijuana from that individual. However, the
                 information he had given in the past was therefore
                 proven to be true. His veracity was proven and his
                 means of knowledge was also proven by his own
                 observation. Both prongs of the ... test as set out in
                 State v. Jacumin, 778 S.W.2d 430 were met.

In this pro se appeal, the defendant is limited to any question properly addressed

under Rule 37(b)(2)(i) or (iv), Tenn. R. Crim. P., explicitly reserving "with the consent

of the court the right to appeal a certified question of law that is dispositive of the

case."2


        2
           In this pro se appeal, the defendant cites three issues: (1) whether the trial court erred by not
granting the suppression hearing; (2) whether the state erred in not producing the confidential
informant; and (3) whether the judge abused his discretion by relying on information not placed in the
affida vit of co m plaint.

                                                     3
              Obviously, an affidavit is an indispensable prerequisite to the issuance

of any search warrant. Tenn. Code Ann. § 40-6-103; State ex rel. Blackburn v. Fox,

200 Tenn. 227, 230, 292 S.W.2d 21, 23 (1956). It must establish probable cause.

Tenn. Code Ann. § 40-6-104; Tenn. R. Crim. P. 41(c). Probable cause has been

generally defined as a reasonable ground for suspicion, supported by circumstances

indicative of an illegal act. See Lea v. State, 181 Tenn. 378, 380-81, 181 S.W.2d

351, 352 (1944).



              Also, fundamental to the issuance of a search warrant is the

requirement that the issuing magistrate make an independent determination that

probable cause exists. See State v. Moon, 841 S.W.2d 336, 337 (Tenn. Crim. App.

1992). Because the magistrate must make an independent determination, it is

imperative that the affidavit contain more than conclusory allegations. "’Recital of

some of the underlying circumstances in the affidavit is essential if the magistrate is

to perform his detached function and not serve merely as a rubber stamp for the

police.’" State v. Moon, 841 S.W.2d at 338 (quoting United States v. Ventresca, 380

U.S. 102, 108-09 (1965)).



              The defendant primarily argues that the affidavit fails to establish the

informant's reliability. The general rule is that if the information in the affidavit is

supplied by a confidential informant, the adequacy of the affidavit is measured by a

two-pronged test:

              (1) whether the affidavit contains the basis of the
              informant's knowledge (the "basis of knowledge prong");
              and

              (2) whether the affidavit includes a factual allegation that
              the informant is credible or the information is reliable (the
              "veracity prong").

State v. Jacumin, 778 S.W.2d 430, 432, 436 (Tenn. 1989)(relying upon Aguilar v.


                                              4
Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969)).

The basis of knowledge prong of this test is not at issue. Our attention is, therefore,

directed to the second prong.



              In Aguilar, the United States Supreme Court held that a search warrant

was improvidently issued by the magistrate because the affidavit did not contain any

underlying circumstances indicative of illegal activity or any facts disclosing the

credibility of the informant or the reliability of the information given. 378 U.S. at 114.

Although the United States Supreme Court no longer employs the Aguilar-Spinelli

test, the Tennessee Supreme Court has determined that the test, "if not applied

hypertechnically, provide[s] a more appropriate structure for probable cause

inquiries incident to the issuance of a search warrant ... [and] is more in keeping with

the specific requirement of Article I, Section 7 of the Tennessee Constitution ...."

State v. Jacumin, 778 S.W.2d at 436.



              A conclusory allegation of the informant's reliability is insufficient to

satisfy the veracity prong. Spinelli v. United States, 393 U.S. at 416. "It disallows

any evaluation by the magistrate and requires that the magistrate accept the

affiant's conclusions not only that the prior information was credible but also that it

was relevant and indicative of reliability. By its nature, such an allegation voids the

magisterial function." State v. Stephen Udzinski, Jr., No. 01C01-9212-CC-00380,

slip op. at 8 (Tenn. Crim. App., at Nashville, Nov. 18, 1993). Thus, the affidavit must

include the specific underlying circumstances which establish the reliability of the

confidential informant.



              In State v. Moon, this court found an affidavit to be inadequate when

the informant, who claimed to have seen marijuana on the premises to be searched,


                                            5
was described only as a "reliable" person who "‘has given information against his

penal [interest] and ... has given information that affiant has checked and found to

be correct.’" 841 S.W.2d at 339. Similarly, in the consolidated case of State v.

Landon Gaw & State v. Ronald Wayne Nail, No. 01C01-9410-CC-00351, slip op. at

6-7 (Tenn. Crim. App., at Nashville, Oct. 26, 1995), this court held an affidavit which

merely stated that the "informant has provided accurate and reliable information in

the past to Officer Winfree" failed to establish the veracity of the informant. This

court observed that there was nothing more than a conclusory allegation of the

informant's veracity: "confidential and reliable informant who has furnished

information that has proven to be truthful ...." Thus, the kind, quality, and nature of

the information previously given by the informant must be provided to the issuing

magistrate so that there is more than mere reliance upon the affiant's assertion of

reliability.



               The failure to establish the veracity of the confidential informant,

however, is not necessarily fatal to the affidavit. The ruling in Jacumin provides that

"independent police corroboration could make up deficiencies in either prong" of the

Aguilar-Spinelli test. State v. Jacumin, 778 S.W.2d at 436; see Spinelli v. United

States, 303 U.S. at 414-15. As a result, we must also consider whether the police

corroboration alleged in this affidavit is sufficient to satisfy the veracity prong of

Jacumin.



               This court first addressed the issue of how much police corroboration

is needed to support a determination of reliability of information in Moon. The

question was framed as follows: "'Can it fairly be said that the tip, even when

certain parts of it have been corroborated by independent sources, is as trustworthy

as a tip which would pass Aguilar's tests without independent corroboration?'" State


                                             6
v. Moon, 841 S.W.2d at 340 (quoting Spinelli v. United States, 393 U.S. at 414-15).

In Moon, the court found the affidavit to be inadequate due to a conclusory

allegation of corroboration, unaccompanied by any underlying facts:

              ["]Certainly, more than the corroboration of a few minor
              elements of the story is necessary, especially if those
              elements involve non-suspect behavior. It is equally
              certain, though, that the police need not corroborate
              every detail of an informant's report to establish sufficient
              evidence of his veracity." ... [I]t is not necessary that the
              events observed by the police supply probable cause by
              themselves or that they point unequivocally in the
              direction of guilt. It is sufficient that they are ‘unusual
              and inviting explanation,’ though ‘as consistent with
              innocent as with criminal activity.’ Thus, when an
              untested informant says that he has seen horse race
              bets taken at a steel plant and then passed through the
              fence to defendant, police observation of packages being
              passed to the defendant on several occasions ‘was
              sufficient to establish the reliability of the informer in this
              instance.’ Similarly, where an informer said narcotics
              were being sold in a certain record shop and that he had
              purchased narcotics and seen others there, this was
              adequately corroborated by a half hour surveillance of
              the shop resulting in ‘personal observation of known
              narcotic addicts entering the premises, speaking with a
              clerk, going to the rear of the store and then exiting with
              no apparent purchase.’["]

State v. Moon, 841 S.W.2d at 341 (emphasis added)(quoting United States v. Bush,

647 F.2d 357, 363 (3rd Cir. 1981) and 1 Wayne R. LaFave, Search and Seizure §

3.3(f), at 683 (2d ed. 1978)).



              In State v. Marshall, 870 S.W.2d 532 (Tenn. Crim. App. 1993), this

court reviewed a warrantless arrest where probable cause was based on an

anonymous informant's tip and police corroboration. The defendant argued the

arrest was illegal because the officer did not have a basis for determining the

reliability of the informant. By use of the standard in Moon, we found the presence

of probable cause. Although the police officer did not have a basis for determining

the informant's reliability, the corroboration was substantial. The police officer saw

cash change hands and observed the defendant "approaching cars, leaning inside

                                            7
windows, and going back and forth from his shirt and pants pockets while leaning

into the cars." State v. Marshall, 870 S.W.2d at 536.



              Here, the affidavit contains something more than a conclusory

allegation of police corroboration. Officer Harvey had confirmed "within the past five

days" that the informant had acquired marijuana which had been subjected to

seizure. That the officer had participated in the seizure of the same illegal drug from

the same premises just prior to the issuance of the warrant is the kind of

independent corroboration necessary to establish the reliability of the confidential

informant. This is more than a mere allegation of association with criminals; by

comparison, in Spinelli, the defendant was simply referred to as an "associate of

[known] bookmakers ... and [known] gamblers." 393 U.S. at 414. The United States

Supreme Court characterized that allegation as a "bald and unilluminating assertion

of suspicion that is entitled to no weight in appraising the magistrate's decision." Id.

In order to meet state constitutional standards, a search warrant’s affidavit must

allege facts which are "inviting of explanation" by the suspect. State v. Moon, 841

S.W.2d at 341. In our view, the contents of this affidavit, while less illuminating than

ideal, marginally satisfied the veracity prong. See State v. Wright, No. 01C01-9510-

CC-00326 (Tenn. Crim. App., at Nashville, Jan. 16, 1997).



              Accordingly, the judgment is affirmed.



                                   __________________________________
                                   Gary R. Wade, Judge

CONCUR:



(See separate concurring opinion)
John H. Peay, Judge


                                           8
_______________________________
Thomas T. Woodall, Judge




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