                                                                                        02/15/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              November 8, 2016 Session

          STATE OF TENNESSEE v. MARCIA LATRICE TAYLOR
                    Appeal from the Circuit Court for Maury County
                         No. 24569      David L. Allen, Judge



                             No. M2016-00934-CCA-R3-CD
                        _____________________________

A Maury County grand jury indicted the Defendant, Marcia Latrice Taylor, for one count
of possession of 0.5 grams or more of a Schedule II substance, cocaine, with the intent to
sell or deliver and one count of possession of 14.175 grams of a Schedule VI substance,
marijuana, with the intent to sell or deliver. The Defendant filed a motion to suppress the
evidence found as a result of a search of an establishment that she owned based upon the
credibility and reliability of the confidential informant whose statement police used as a
basis for the warrant. The trial court granted the motion, and the State appeals. On
appeal, the State contends that the trial court erred because the confidential informant’s
reliability and knowledge were corroborated by independent police investigation. After
review, we reverse the judgment of the trial court and remand the case for proceedings
consistent with this opinion.

 Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                       Remanded; Indictment Reinstated

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ALAN E. GLENN, J., joined.

Herbert H. Slatery III, Attorney General and Reporter; Matthew Todd Ridley, Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Patrick Powell,
Assistant District Attorney General, for the appellant, State of Tennessee.

Jacob J. Hubbell, Columbia, Tennessee, for the appellee, Marcia Latrice Taylor.

                                       OPINION
                                        I. Facts

      This case arises from evidence seized by the police after they searched the
Defendant’s place of business. The Defendant filed a motion to suppress the evidence,
contending that the search warrant was defective because it did not establish the
knowledge and reliability of the confidential informant. The trial court held a hearing on
the motion, during which the parties presented the following evidence: The parties first
presented a copy of the search warrant and the supporting affidavit. The record reflects
the affidavit in support of the search warrant alleged:

       INVESTIGATOR HUNTER KREADY, COLUMBIA POLICE
       DEPARTMENT VICE & NARCOTICS UNIT [swears] that there is
       probable and reasonable cause to believe that, [THE DEFENDANT],
       JOHN AND/OR JANE DOE, is/are now in possession of certain evidence
       of a crime . . . .

             The Affiant further testifies that said evidence is now located and
       may be found in possession of said persons or on said premises located in
       Maury County, Tennessee, and more particularly described as follows: . . .
       A COMMERCIAL BUSINESS BEING KNOWN AS DIRTY DIRTY
       LOUNGE . . . THIS IS TO INCLUDE ANY AND ALL VEHICLES AND
       OUTBUILDINGS THAT ARE ASSOCIATED WITH [THE
       DEFENDANT] AND THE OCCUPANTS OF [THE LOUNGE].

The affidavit went on to state that Investigator Kready believed the following to be true:

              This affiant has been contacted by a cooperating individual stating
       that they could purchase cocaine from [the Defendant] at . . . Dirty Dirty
       Lounge . . . . [The Defendant] and Tiffany Raynell Martin are shown as co-
       owners of Dirty Dirty Lounge. While researching information of Dirty
       Dirty Lounge it was discovered a rental agreement dated 02/03/2015
       between the property owner Keith Hall with [the Defendant] and Fontaine
       Bodrogi White showing as the renters. This was discovered in an
       application for a beer permit at the Dirty Dirty Lounge with the Beer Board
       of the City of Columbia.

              On the first controlled purchase of cocaine the cooperating
       individual was searched along with the vehicle to be driven by the
       cooperating individual, for any narcotics, narcotic paraphernalia or
       currency with none being found. The cooperating individual was then
       provided with photographed money to purchase the cocaine. The
       cooperating individual was also provided an electronic listening device.
       Assisting with the controlled purchase were officers Seagroves, Hardison,
       Sgt. Ussery and Lt. Shannon.

                                             2
              The cooperating individual was followed by this affiant to . . . [the
      Dirty Dirty Lounge] and monitored through the electronic listening device.
      This affiant did see the cooperating individual pull onto the lot of [the Dirty
      Dirty Lounge] and observe other vehicles in the parking lot. While
      monitoring the listening device this affiant did hear the cooperating
      individual enter the Dirty Dirty Lounge. While in the Lounge, only music
      could be heard via the listening device due to the volume of the music
      being played in the Lounge. The cooperating individual, remained in the
      Lounge several minutes before hearing the cooperating individual exit and
      start the cooperating individual’s vehicle. The cooperating individual was
      monitored to a predetermined meeting location. This affiant did recover the
      purchased cocaine packaged in clear baggie that was twisted at one end and
      tied at the other end. This affiant also recovered the electronic device that
      was used in the operation and performed a post buy interview with the
      cooperating individual. The cooperating individual stated that when they
      arrived they exited their vehicle and entered the Dirty Dirty Lounge and
      approached the bar. The cooperating individual state[d] that they spoke
      with [the Defendant] who was behind the bar, the cooperating individual
      told [the Defendant] that he wanted one gram of cocaine. The cooperating
      individual state[d] that [the Defendant] walked to an area near the end of
      the bar and describe[d] [the Defendant] reaching down under the bar to
      retrieve the cocaine. The cooperating individual state[d] that [the
      Defendant] then handed the cooperating individual the clear baggy of
      cocaine. The cooperating individual then handed [the Defendant] $60.00
      dollars US Currency. The cooperating individual state[d] that they then
      exited the lounge and entered their vehicle and traveled back to the
      designated meeting location and me[t] this affiant. After returning the
      cooperating individual and their vehicle were searched for any illegal
      narcotics, drug paraphernalia or US currency with none being found.

        The affidavit went on to state that the substance purchased by the confidential
informant field tested positive for cocaine. The affidavit then described a second
purchase conducted by the confidential informant. The affidavit described that the
officer searched the informant’s vehicle before the drug purchase, and, in so doing, found
a small amount of cocaine residue on the driver’s side floor board of his vehicle. There
was not enough residue to send to TBI to be tested and officers found nothing else illegal
in the vehicle. The officers gave the informant pre-photographed drug buy money for the
cocaine purchase and a listening device. The affidavit then described the buy as follows:

             The cooperating individual was followed by this affiant to [the Dirty
      Dirty Lounge] and monitored through the electronic listening device. This
                                            3
       affiant did see the cooperating individual pull into the [parking lot of] the
       Dirty Dirty Lounge and observe other vehicles in the parking lot. While
       monitoring the listening device this affiant did hear the cooperating
       individual enter the Dirty Dirty Lounge. While in the Lounge, only music
       could be heard via the listening device due to the volume of the music
       being played in the Lounge. The cooperating individual, remained in the
       Lounge several minutes before hearing the cooperating individual exit and
       start the cooperating individual’s vehicle. The cooperating individual was
       monitored to a predetermined meeting location. This affiant did recover the
       purchased cocaine packaged in clear baggy that was twisted at one end and
       tied at the other end. This affiant also recovered the electronic device that
       was used in the operation and performed a post buy interview with the
       cooperating individual.

              The cooperating individual stated that when they arrived at [the
       Dirty Dirty Lounge] they exited their vehicle and spoke with Fontaine
       White who was standing in the parking lot then they entered the Dirty Dirty
       Lounge and approached the bar. The cooperating individual state[d] they
       made contact with [the Defendant] who was behind the bar. The
       cooperating individual told [the Defendant] that he wanted one gram of
       cocaine. The cooperating individual state[d] that [the Defendant] again
       walked to an area near the end of the bar and describe[d] [the Defendant]
       reaching down under the bar to retrieve the cocaine. The cooperating
       individual state[d] that [the Defendant] then handed the cooperating
       individual the clear baggy of cocaine. The cooperating individual then
       handed [the Defendant] $60.00 dollars US Currency. The cooperating
       individual state[d] then they entered their vehicle and traveled back to the
       designated meeting location and m[et] this affiant. After returning the
       cooperating individual and their vehicle were searched for any narcotics,
       drug paraphernalia or US currency with none being found.

       The affidavit went on to state that the substance in the baggie again tested positive
for cocaine.

       The affidavit then described a third drug buy:

              On the third controlled purchase of cocaine the cooperating
       individual arrived at the predetermined meeting location and was searched
       along with the vehicle to be driven by the cooperating individual, for any
       narcotics, narcotic paraphernalia or US currency with none been located.
       The cooperating individual was then provided with photographed money to
                                             4
purchase the cocaine. The cooperating individual was also provided an
electronic listening device. Assisting with the controlled purchase were
officers Segroves, Sgt. Ussery and Officer Howell.

        The cooperating individual was followed by this affiant to 701 East
6th Street and monitored through the electronic listening device. Officer
Howell and Sgt. Ussery did observe the cooperating individual pull onto the
lot of 701 East 6th Street being the Dirty Dirty Lounge and park on the left
hand side of the building.

        While monitoring the listening device this affiant did hear the
cooperating individual exit their vehicle and enter the Dirty Dirty Lounge.
While in the Lounge, due the volume of music no conversation could be
heard via the listening device. The cooperating individual, remained in the
Lounge several minutes before hearing the cooperating individual exit and
start the cooperating individual’s vehicle. The cooperating individual was
monitored to a predetermined meeting location. This affiant did recover the
purchased cocaine packaged in clear baggy that was twisted at one end and
tied at the other end. This affiant also recovered the electronic device that
was used in the operation and performed a post buy interview with the
cooperating individual. The cooperating individuals vehicle and person
were searched again for any illegal narcotics, drug paraphernalia and US
currency with none being located the electronic listening device was turned
off.

        The cooperating individual stated that when they arrived at 701 East
6th Street they exited their vehicle and entered the Dirty Dirty Lounge and
approached the bar. The cooperating individual states they made contact
with [the Defendant] who was behind the bar. The cooperating individual
told [the Defendant] that he wanted one gram of cocaine. The cooperating
individual states that [the Defendant] walked to an area near the end of the
bar and describes [the Defendant] reaching down under the bar to retrieve
the cocaine. The cooperating individual states that [the Defendant] then
handed the cooperating individual the clear baggy of cocaine. The
cooperating individual then handed [the Defendant] $60.00 dollars US
Currency. The cooperating individual states then they exited the Lounge
entered their vehicle and traveled back to the designated meeting location
and meet this affiant. Handing this affiant a clear plastic baggy with
cocaine the cooperating individual had just purchased from [the Defendant]
at the Dirty Dirty Lounge.

                                     5
      The substance field tested positive for cocaine. This third controlled drug buy
occurred with 72 hours of the officer seeking a search warrant.

      Based upon this affidavit, the trial court issued a search warrant finding that there
was probable cause that the Defendant, John and/or Jane Doe, violated the law. The
warrant stated:

       YOU ARE THEREFORE COMMANDED to make an immediate search
       on the person or premises of 701 East 6th Street, Columbia, Maury County,
       Tennessee, and in the premises used and occupied by them located and
       more particularly described as follows: 701 East 6th Street, Columbia,
       Maury County, TN 38401 Being a commercial business being known as
       Dirty Dirty Lounge. This building will be a white concrete block
       structure with the glass front door being located on the south side of
       the structure. Numbers 701 located on the upper left corner of the
       south side of the business. The building is located on the south east
       corner of East 6th and East End Street. This is to include any and all
       vehicles and outbuildings that are associated with [the Defendant] and
       the occupants of 701 East 6th Street, Columbia, Maury County, TN
       38401.


        The record evinces that, when officers executed this search warrant, they
discovered both cocaine and marijuana inside the Dirty Dirty Lounge. The Maury
County grand jury indicted the Defendant for one count of possession with the intent to
sell .5 grams or more of cocaine and one count of possession with the intent to sell more
than ½ an ounce of marijuana.

       On March 15, 2016, the Defendant filed a motion to suppress the evidence found
as a result of the search of the Dirty Dirty Lounge. She stated that the search was
improperly based upon information given by a confidential informant (“CI”) that was not
sufficiently corroborated. The motion alleged that the affidavit failed to address the basis
of knowledge supporting the informant’s reliability and failed to address whether the
officers had been able to verify the information supplied by the informant. The motion
further stated that the officers could not hear the transactions taking place because of the
music in the lounge and had to rely only upon the statements made by the CI, whose
credibility was called into question because officers found cocaine in the CI’s car before
one of the controlled drug buys.

      In the memorandum, the Defendant contended that the search warrant was not
based upon probable cause because the information supporting the warrant was provided
                                             6
by a criminal informant. The Aguilar-Spinelli test, the Defendant stated, requires that
when a criminal informant provides the basis for probable cause, the affiant must inform
the magistrate of (1) the basis for the informant’s knowledge, and (2)(a) a basis for
establishing the informant’s credibility or (2)(b) a basis for establishing that the
informant’s information is reliable. The Defendant asserted that the affidavit supporting
the search warrant did not meet the Aguilar-Spinelli test in either regard.

       On April 8, 2016, the trial court held a hearing on the motion to suppress. At the
hearing, the parties presented the search warrant and supporting affidavit. The Defendant
then presented arguments similar to those in her motion.

       The State argued that the Aguilar-Spinelli test did apply to the confidential
informant but that this case was a “hybrid” case in that it also involved officer testimony.
The State noted that police can prove corroboration to cure any deficiencies of the
Aguilar-Spinelli test. Further, it stated that officers did more corroboration in this case
than in many other cases in which the search warrants were found to be valid. The State
presented State v. Powell, 53 S.W.3d 258 (Tenn. Crim. App. 2000) as supporting its
position. It noted that, in Powell, the police conducted several controlled purchases and
the search warrant was held valid.

       The State then articulated the facts that it said corroborated the CI’s information.
It noted that the CI contacted law enforcement officers and said that he could purchase
drugs from the Defendant at the Dirty Dirty Lounge. Law enforcement officers then
established that the Defendant was a co-owner of the Dirty Dirty Lounge and that her
rental agreement established that she began renting the building in February 2015.
Officers examined the Dirty Dirty Lounge’s beer permit and determined that the
Defendant was listed as an owner of the Lounge. The officers then followed the CI to the
Lounge and conducted a controlled buy. Police wired the CI with an audio monitor and
searched his person and vehicle. They watched the CI go into and out of the Dirty Dirty
Lounge. The officer noted in the affidavit that the CI told him that he purchased the
drugs from the Defendant, naming her specifically.

        The State argued that, while police officers did find cocaine residue in the CI’s car
before the second controlled buy, this only showed that the CI was familiar with cocaine.
It further showed that the officers thoroughly searched the vehicle and that they were
honest about what they found. The State noted that the law enforcement officers
conducted three controlled buys, that each time the CI said the Defendant sold him drugs,
and that each controlled buy was from the same business.

       The State further argued that Aguilar-Spinelli does not deal with situations
involving controlled drug buys, which are sufficient corroboration of a CI’s information.
                                             7
      Based upon this evidence, the trial court granted the Defendant’s motion to
suppress. It found:

       [T]he Criminal Informant was someone from the criminal milieu; therefore,
       the Aguilar-Spinelli test must be met. There were no facts within the four
       corners of the Affidavit establishing the Criminal Informant’s basis of
       knowledge. The Affidavit set forth that the Crimnal Informant stated that
       he could purchase cocaine from the Defendant, but there were no facts
       establishing how the Criminal Informant knew that he could purchase
       cocaine from the Defendant. There were no facts indicating that the
       Criminal Informant had purchased cocaine from the Defendant in the past.
       There were no facts stating a timeframe within which the Criminal
       Informant had purchased cocaine from the Defendant in the past.

The trial court therefore concluded that the affidavit did not satisfy the “basis of
knowledge” prong of the Aguilar-Spinelli test. The trial court further found that the
affidavit failed to establish the Criminal Informant’s credibility. The trial court
distinguished the facts of this case from the facts in Powell, stating that, in Powell, the
police corroborated the CI’s information by successfully monitoring a controlled drug
buy. The trial court granted the Defendant’s motion to suppress.

       It is from this judgment that the State now appeals.

                                       II. Analysis

       On appeal, the State contends that the trial court erred when it granted the
Defendant’s motion to suppress because law enforcement officers made efforts to
corroborate the CI’s information. It argues that the trial court’s ruling is “hypertechnical”
and failed to give the appropriate deference to the magistrate issuing the search warrant.
The State asserts that the warrant was supported by probable cause. The Defendant
contends that the trial court properly granted the motion to suppress because there was
insufficient police corroboration that the information supplied by the CI was reliable.

       When this Court reviews a trial court’s ruling on a motion to suppress,
“[q]uestions 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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing at the
suppression hearing is afforded the “strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.” State v.
Keith, 978 S.W.2d 861, 864 (Tenn. 1998). The findings of a trial court in a suppression
                                             8
hearing are upheld unless the evidence preponderates against those findings. See id.
However, the application of the law to the facts found by the trial court is a question of
law and is reviewed de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v.
Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997).

        Under both the Tennessee and United States Constitutions, no search warrant may
be issued except upon probable cause, which has been defined as “a reasonable ground
for suspicion, supported by circumstances indicative of an illegal act.” State v. Henning,
975 S.W.2d 290, 294 (Tenn. 1998). Tennessee requires a written and sworn affidavit,
“containing allegations from which the magistrate can determine whether probable cause
exists,” as “an indispensable prerequisite to the issuance of a search warrant.” Id. The
affidavit must contain more than mere conclusory allegations on the part of the affiant.
Id. However, a finding of probable cause made by an issuing magistrate is entitled to
great deference. State v. Yeomans, 10 S.W.3d 293, 296 (Tenn. Crim. App. 1999) (citing
State v. Melson, 638 S.W.2d 342, 357 (Tenn. 1982), cert. denied, 459 U.S. 1137 (1983)).
Therefore, the standard to be employed in reviewing the issuance of a search warrant is
“whether, in light of all the evidence available, the magistrate had a substantial basis for
finding probable cause.” State v. Meeks, 876 S.W.2d 121, 124 (Tenn.Crim.App.1993)
(citation omitted).

        In State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989), our Supreme Court
adopted the two-pronged Aguilar-Spinelli test for determining whether an affidavit that
relies upon allegations supplied by a criminal informant is sufficient to establish probable
cause. Under the first, “basis of knowledge” prong of the test, “facts must be revealed
which permit the magistrate to determine 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.” State v. Moon, 841 S.W.2d
336, 338 (Tenn. Crim. App. 1992). Under the second, or “veracity” prong of the test,
“facts must be revealed which permit the magistrate to determine either the inherent
credibility of the informant or the reliability of his information on the particular
occasion.” Id. (citation omitted).

       After reviewing the affidavit and the law, we conclude that the trial court erred
when it granted the Defendant’s motion to suppress the evidence found as a result of the
search warrant. The CI stated to police that he could purchase drugs inside the Dirty
Dirty Lounge from the Defendant. Law enforcement officers then conducted three
controlled drug buys involving the CI. They searched the CI for drugs, gave him money,
watched him enter and exit the Dirty Dirty Lounge, searched him again and obtained the
drugs he purchased, which field tested positive for cocaine. The CI said that the
Defendant reached under the bar to obtain the drugs. This is a sufficient basis to establish
                                             9
probable cause to apply for a valid search warrant of the Dirty Dirty Lounge, which
police did. The search warrant specifically allowed police to search the Lounge and cars
parked in the parking lot thereof. The search warrant also restated the CI’s information,
that it was the Defendant who sold him the drugs inside the Lounge, and we agree that
officers could not independently corroborate that fact due to the audio recording. This,
however, does not invalidate the search warrant as to the premises of the Dirty Dirty
Lounge from which the CI obtained the drugs on three occasions. We conclude that the
CI had a sufficient basis of knowledge that he could purchase drugs inside the lounge.
He entered the lounge three times, after being searched by law enforcement, and he
purchased cocaine on each occasion. He stated that the Defendant reached under the bar
to get the cocaine. Further, the CI’s “inherent credibility” was not set forth in the
affidavit but the circumstances of the controlled drug buys established the “reliability of
his information on the particular occasion. Moon, 841 S.W.2d at 338. Accordingly, we
reverse the trial court’s judgment granting the Defendant’s motion to suppress.

                                     III. Conclusion

      In accordance with the foregoing reasoning and authorities, we reverse the
judgment of the trial court, reinstate the indictment, and remand the case for further
proceedings consistent with this opinion.

                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




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