        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                November 1, 2011 Session

                    STATE OF TENNESSEE v. KEITH SALES

                    Appeal from the Criminal Court for Shelby County
                           No. 08-07884    Chris Craft, Judge



                 No. W2011-00374-CCA-R3-CD - Filed October 17, 2012


Appellant, Keith Sales, was indicted by the Shelby County Grand Jury for two counts of
possession of 26 grams or more of cocaine with intent to sell, two counts of possession of
Alprazolam with intent to sell, and one count of possession of a handgun as a convicted
felon. Appellant’s arrest was as the result of the execution of a search warrant based upon
information provided by a confidential informant. Appellant filed a motion to suppress the
evidence seized as a result of the search. The trial court denied the motion to suppress, and
Appellant pled guilty reserving a certified question for appeal challenging the trial court’s
denial of his motion to suppress. Appellant pled guilty in a negotiated plea agreement to one
count each of possession of 5 grams or more of cocaine, one count of possession of
Alprazolam, and one count of possession of a handgun as a convicted felon. He received an
effective nine-year sentence. On appeal, Appellant argues that the information set out in the
affidavit does not meet the two prong test set out in Spinelli v. United States, 393 U.S. 410,
89 S. Ct. 584, 21 L. Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509,
12 L. Ed.2d 723 (1964), (“Aguilar-Spinelli”), as adopted in State v. Jacumin, concerning the
proof of the reliability of a confidential informant. We have reviewed the record on appeal,
and conclude that the information supplied in the affidavit meets the Aguilar-
Spinelli/Jacumin test. Therefore, we affirm the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court are Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which JOSEPH M. T IPTON, P.J., and
A LAN E. G LENN, J., joined.

Blake D. Ballin, Memphis, Tennessee, for the appellant, Keith Sales.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Chris Scruggs, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background

        On October 4, 2008, detectives with the Shelby County Sheriff’s Office applied for
a search warrant. One of the detectives attached an affidavit stating that he was relying upon
information given to him by a confidential informant. In his affidavit, the officer stated that
the informant “has given information in the past in regards to narcotics trafficking resulting
in several seizures of cocaine and marijuana, which has resulted in several felony narcotics
arrest[s] for cocaine and marijuana.”

        The search warranted was granted. During the execution of the search warrant, the
officers found 8.4 grams of marijuana, over 40 grams of cocaine, 9 and a half Xanax bars,
scales, a .357 magnum, and a great deal of cash. The Shelby County Grand Jury indicted
Appellant for possession of 26 grams or more of cocaine with intent to sell, possession of
Alprazolam with intent to sell, and possession of a handgun as a convicted felon.

         Appellant filed a motion to suppress the evidence seized during the execution of the
search warrant. The trial court denied the motion in a written order. Appellant entered a
negotiated guilty plea for one count of possession of 5 grams or more of cocaine with intent
to sell, one count of possession of Alprazolam with intent to sell, and one count of possession
of a handgun as a convicted felon. Appellant was sentenced to an effective sentence of nine
years as a result of these convictions. As part of his plea, Appellant reserved a certified
question of law for appeal pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal




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Procedure1 for appeal to this Court. Appellant’s certified question of law on appeal is the
following:


       [W]hether the Court erred in denying the Defendant’s Motion to Suppress the
       fruits of the Search Warrant executed at 4378 Bow Street on October 24, 2008
       because said warrant is facially invalid under the Tennessee and United States
       Constitutions based on the failure of the Affidavit in support of said Search
       Warrant to prove the veracity of the confidential informant.

                                              ANALYSIS

       “This Court will uphold a trial court’s findings of fact in a suppression hearing unless
the evidence preponderates otherwise.” State v. Hayes, 188 S.W.3d 505, 510 (Tenn. 2006)


       1
           In pertinent part, Rule 37(b) of the Tennessee Rules of Criminal Procedure provides:


       The defendant or the state may appeal any order or judgment in a criminal proceeding when
       the law provides for such appeal. The defendant may appeal from any judgment of
       conviction:

       (1) on a plea of not guilty; or

       (2) on a plea of guilty or nolo contendere, if:

       (A) the defendant entered into a plea agreement under Rule 11(a)(3) but explicitly
       reserved—with the consent of the state and of the court—the right to appeal a certified
       question of law that is dispositive of the case, and the following requirements are met:

       (i) the judgment of conviction or other document to which such judgment refers that is filed
       before the notice of appeal, contains a statement of the certified question of law that the
       defendant reserved for appellate review;

       (ii) the question of law is stated in the judgment or document so as to identify clearly the
       scope and limits of the legal issue reserved;

       (iii) the judgment or document reflects that the certified question was expressly reserved
       with the consent of the state and the trial court; and

       (iv) the judgment or document reflects that the defendant, the state, and the trial court are
       of the opinion that the certified question is dispositive of the case; . . . .



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(citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). On appeal, “[t]he prevailing party
in the trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable
and legitimate inferences that may be drawn from that evidence.’” State v. Carter, 16
S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)).
“Questions 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.” Odom, 928 S.W.2d at 23. Our review of a trial court’s application of law to the facts
is de novo, with no presumption of correctness. State v. Walton, 41 S .W.3d 75, 81 (Tenn.
2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958
S.W.2d 626, 629 (Tenn. 1997)). When the trial court’s findings of fact are based entirely on
evidence that does not involve issues of witness credibility, however, appellate courts are as
capable as trial courts of reviewing the evidence and drawing conclusions, and the trial
court’s findings of fact are subject to de novo review. State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000). Further, we note that “in evaluating the correctness of a trial court’s ruling on
a pretrial motion to suppress, appellate courts may consider the proof adduced both at the
suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

       The trial court made the following findings in denying the motion to suppress:


               Refusing to apply a hypertechnical standard to the information supplied
       in the affidavit in the instant case, and applying the holding in Lowe (citing
       Udzinski) quoted above, this court agrees with that court that mere
       “information concerning the number of arrests an informant has precipitated
       is not necessarily indicative of reliability,” and that “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.” Given the requirement that
       “the affiant must provide some concrete reason why the magistrate should
       believe the informant,” this court finds that the prior arrests coupled with the
       prior “several seizures of cocaine and marijuana” set out in the affidavit in the
       instant case provided enough support for the veracity prong in the Aguilar-
       Spinelli standard for a finding of probable cause by the neutral and detached
       magistrate who reviewed the affidavit and warrant, who should be given “great
       deference” for his or her probable cause determination. See Jacumin at 431-
       32. This court finds the affidavit sufficient.


       An affidavit establishing probable cause is an indispensable prerequisite to the
issuance of a search warrant. See, e.g., T.C.A. § 40-6-103; Tenn. R. Crim. P. 41(c); State v.
Henning, 975 S.W.2d 290, 294 (Tenn. 1998); State v. Moon, 841 S.W.2d 336, 338 (Tenn.

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Crim. App. 1992). Such probable cause “must appear in the affidavit [itself] 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.” Moon, 841 S.W.2d at
338; see also Henning, 975 S.W.2d at 295. To sufficiently make a showing of probable
cause, an affidavit “must set forth facts from which a reasonable conclusion might be drawn
that the evidence is in the place to be searched.” State v. Smith, 868 S.W.2d 561, 572 (Tenn.
1993). However, a decision regarding the existence of probable cause requires that the
affidavit contain “more than mere conclusory allegations by the affiant.” State v. Stevens,
989 S.W.2d 290, 293 (Tenn. 1999); see also Moon, 841 S.W.2d at 338.

        Furthermore, when “probable cause for a search is based upon information from a
confidential informant, there must be a showing in the affidavit of both (1) the informant’s
basis of knowledge and (2) his or her veracity.” State v. Powell, 53 S.W.3d 258, 262 (Tenn.
Crim. App. 2000); see also State v. Jacumin, 778 S.W.2d 430, 432, 435-36 (Tenn. 1989)
(utilizing the standard set out in Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L.
Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed.2d 723
(1964)).2 To sufficiently make such showings, the affidavit must include facts permitting
“the magistrate to determine: (1) whether the informant had a basis for his information that
a certain person had been, was, or would be involved in criminal conduct or that evidence
of crime would be found at a certain place” and (2) whether the informant is inherently
credible or “the reliability of his information on the particular occasion.” Moon, 841 S.W.2d
at 338. Again, the courts have stressed that conclusory statements absent supportive detail
will not suffice to establish these requirements. See, e.g., id. at 339. However, “independent
police corroboration” may compensate for such deficiencies. See Jacumin, 778 S.W.2d at
436; Moon, 841 S.W.2d at 340.

        Case law warns against a hyper-technical application of the Aguilar-Spinelli test, and
this Court has previously provided that “[t]he requisite volume or detail of information
needed to establish the informant’s credibility is not particularly great.” State v. Lowe, 949
S.W.2d 302, 305 (Tenn. Crim. App. 1996). However, precedent also provides that “the
affiant must provide some concrete reason why the magistrate should believe the informant.”
Id.

        2
         In Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed.2d 527 (1983), the United States
Supreme Court abandoned the Aguilar-Spinelli two-pronged test for evaluating the sufficiency of an affidavit
involving a confidential informant. Gates, 462 U.S. at 238, 103 S. Ct. 2317. However, the Tennessee
Supreme Court subsequently concluded that Aguilar-Spinelli “properly applied ‘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 1, Section 7 of the Tennessee Constitution that a
search warrant not issue ‘without evidence of the fact committed.’” Jacumin, 778 S.W.2d at 436.


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        In the case at hand, Appellant does not challenge the confidential informant’s basis
of knowledge, the first prong of the Aguilar-Spinelli test. His challenge solely targets the
credibility of the confidential informant required under the second prong. As above-noted,
the affidavit in the instant case states that the informant “has given information in the past
in regards to narcotics trafficking resulting in several seizures of cocaine and marijuana,
which has resulted in several felony narcotics arrest[s] for cocaine and marijuana.” This
Court has held that statements that the informant’s previous information resulted in the
seizure of illegal drugs and arrests as a result of the information satisfy the credibility prong
of the Aguilar-Spinelli test. State v. Abernathy, 159 S.W.2d 601, 604 (Tenn. Crim. App.
2004).

        Appellant specifically argues that the affidavit does not satisfy the second prong of
the Aguilar-Spinelli test because it does not set out the specific number of seizures and
arrests that have occurred as a result of the confidential informant. He maintains that the use
of the word “several” in the affidavit is not sufficient. As stated above, this Court has
warned against a hyper-technical application of the Aguilar-Spinelli test. In the affidavit in
question, the affiant stated that the confidential informant’s information had led to several
seizures and arrests. We conclude that the requirement of a specific number in the affidavit
would constitute a hyper-technical application. Therefore, we conclude that both prongs of
the Aguilar-Spinelli test have been met, and the trial court properly dismissed Appellant’s
motion to suppress.

                                       CONCLUSION

       For the foregoing reasons, we affirm the judgments of the trial court.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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