         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 4, 2015

          STATE OF TENNESSEE v. DONNA MARIE CHARTRAND

                   Appeal from the Circuit Court for Gibson County
                        No. 18959 Clayburn Peeples, Judge


                No. W2014-02326-CCA-R9-CD - Filed October 7, 2015


The Defendant, Donna Marie Chartrand, was charged in the Circuit Court for Gibson County
with conspiracy to manufacture methamphetamine, promotion of the manufacture of
methamphetamine, felony possession of drug paraphernalia, and misdemeanor possession of
drug paraphernalia. See T.C.A. §§ 39-17-417(a)(1) (Supp. 2012) (amended 2014)
(manufacture of methamphetamine); 39-12-103 (2014) (conspiracy); 39-17-433(a)(1) (2014)
(promotion of methamphetamine manufacture); 39-17-425(b)(1) (Supp. 2012) (felony
possession of drug paraphernalia); 39-17-425 (Supp. 2012) (misdemeanor possession of drug
paraphernalia). In this interlocutory appeal, the Defendant contends that the trial court erred
in denying her motion to suppress the evidence seized during the search of her home, arguing
that the search warrant was not supported by probable cause. We reverse the order of the trial
court and remand the case for further proceedings in which the evidence obtained pursuant to
the invalid warrant is suppressed.

      Tenn. R. App. P. 9; Order of the Circuit Court Reversed; Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and ROGER A. PAGE, JJ. joined.

Tom Crider, District Public Defender; Milly Worley, Assistant Public Defender, for the
appellant, Donna Marie Chartrand.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Garry Brown, District Attorney General; Mark Hazelwood and Hillary Lawler Parham,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

       This case relates to the February 5, 2013 search of the Defendant‟s home pursuant to a
search warrant. Special Agent Paul Thomas of the West Tennessee Violent Crime and Drug
Task Force requested and received a search warrant for the home of Daniel Corley, a
codefendant with whom the Defendant lived. The search uncovered materials related to the
manufacture of methamphetamine, and the Defendant and the codefendant were arrested.

        At the first suppression hearing on January 7, 2014, no witnesses were presented, and
the trial court heard arguments from defense counsel and the prosecutor. Defense counsel
argued the search warrant was invalid because it was based, in large part, on a tip received by
police from a “confidential concerned citizen.” Defense counsel also argued that the person
should have been considered a criminal informant relative to trustworthiness because no proof
was presented in the affidavit that the informant was law abiding.

       The search warrant and supporting affidavit were received as an exhibit. The affidavit
was completed on February 5, 2013, by Special Agent Paul Thomas. It recited Agent
Thomas‟s experience with police work and drug-related crimes, as well as practices he
associated with the drug trade. The affidavit stated, in relevant part:

       a. During the month of January 2013 your affiant noticed the name of Daniel
       Corley, w/m, [his date of birth, address, and drivers‟ license number] as being
       on the pseudoephedrine purchase logs. A further check of the logs revealed that
       CORLEY has a history of purchasing pseudoephedrine dating back to August
       2012. Furthermore, through my training and experience in investigating
       methamphetamine related cases, the frequency of CORLEY‟s purchase history
       and the fact that he makes his purchases at varying stores in Gibson and
       Madison Counties, leads your affiant to believe that the pseudoephedrine pills
       that CORLEY is purchasing are being used in the manufacture of
       methamphetamine. CORLEY‟s most recent purchase was on 1-30-2013 at
       Target in Jackson, TN. . . .

       ...

       d. . . . a check with NCIC shows that CORLEY pled guilty to three (3)
       methamphetamine offenses in 2000 in the United States Federal Court, Western
       District of TN. For this plea, CORLEY received a sentence of sixty (60)
       months.

       e. Furthermore, a confidential concerned citizen, that wishes to remain silent out
       of fear for their safety, has confided in your affiant that they have personal
       knowledge that CORLEY has been engaging in the ingestion of illegal
       methamphetamine in the past 90 days. This concerned citizen has been known
       personally by your affiant for at least 5 years and has always proven to be
       truthful in other matters.



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       The search warrant was signed and issued by a neutral magistrate on February 5, with
the year not indicated. The magistrate wrote the full date on the supporting affidavit. The
officer‟s return section shows that the search warrant was issued and executed on February 5,
2013, and returned on February 11, 2013. The magistrate signed and dated the judgment
below the officer‟s return section, but did not indicate the year.

        The prosecutor noted to the trial court that Mr. Corley‟s name appeared on the
pseudoephedrine purchase log. The trial court found that a “highly suspicious” pattern of
activity existed and that the “totality of the circumstances listed in the warrant do establish
probable cause. I don‟t think the concerned citizen by him or herself would have been
sufficient, but . . . I think you‟ve got probable cause[.]”

      Defense counsel amended the motion to suppress, and a second suppression hearing
was held on June 16, 2014. No witnesses were presented, and the trial court heard arguments
from counsel and the prosecutor.

        Defense counsel argued that no nexus existed between the items specified in the
warrant relative to manufacturing materials and the place to be searched. Counsel noted that
the informant‟s tip mentioned ingestion of methamphetamine by Mr. Corley but not a location
where the methamphetamine would have been found, and methamphetamine manufacture was
not mentioned.

        Defense counsel argued that the credibility of the informant was not established and
that a person who recognized methamphetamine on sight was probably of the “criminal
element.” Counsel relied upon State v. Gerald Robert Stevens, 989 S.W.2d 290 (Tenn. 1999),
in which our supreme court held that informant credibility cannot be established by a
conclusory statement that the anonymous witness is credible. Counsel also relied upon State
v. James Norman Usery, No. 02C01-9805-CC-00154, 1999 WL 569691 (Tenn. Crim. App.
Aug. 4, 1999), in which this court concluded that a confidential citizen tip was not
presumptively reliable. In that case, the affiant checked a box that indicated he “received
information from a reliable citizen informant.” Id. at *1. The affiant stated 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 familiar with controlled
substances.” Id. The court concluded that because the affidavit did not explain how or why
the citizen informant was “familiar” with illegal drugs, the veracity of the informant was not
established and the affidavit was insufficient to support a search warrant. Id. at *3.

       In the present case, defense counsel observed that although the codefendant‟s name was
on the pseudoephedrine purchase log, the affidavit did not state how frequently the
codefendant purchased pseudoephedrine, that the codefendant was never denied a purchase,
and that buying pseudoephedrine in two counties was not unlawful. Regarding the omission
                                              -3-
of the year in the search warrant, counsel argued that because the search warrant was not
otherwise supported by probable cause, the good faith exception to the exclusionary rule did
not apply and that the error provided an additional basis for concluding the warrant was
invalid.

       The prosecutor contended that based upon the totality of the circumstances, the warrant
was supported by probable cause. Regarding the credibility of the informant, the prosecutor
said that the informant was analogous to an “anonymous tipster.” The prosecutor conceded
that anonymous tips and ninety-day-old tips must be corroborated by additional evidence to be
deemed reliable. The prosecutor argued that the corroborating evidence in this case was the
codefendant‟s thirteen-year-old federal methamphetamine convictions. The prosecutor told
the court he thought that the affidavit specified the convictions were “manufacturing
conviction[s].”

      In addition, the prosecutor argued that the affidavit provided the requisite nexus
between the place to be searched and the items to be seized because the affidavit included a
statement that a person who manufactured methamphetamine usually did so in the person‟s
home. The prosecutor said the codefendant‟s pseudoephedrine purchases, the information
from the tip, and the prior convictions were sufficient evidence to conclude that the
codefendant was manufacturing methamphetamine.

       The prosecutor argued that the issuing magistrate‟s failure to include the year on the
search warrant fell within the good faith exception to the exclusionary rule. See T.C.A. § 40-
6-108 (2012) (stating that otherwise admissible evidence seized as a result of executing a
search warrant will not be suppressed because of a good faith “mistake or technical violation”
by the issuing magistrate, including clerical errors). The prosecutor conceded that the
affidavit was “inartfully drawn.”

       The trial court concluded in its written order that the missing year on the search warrant
was a “good faith violation” and that the completed portions of the warrant resolved any
confusion as to the date of issuance. The court also concluded that the totality of the
information in the affidavit established probable cause and found, in relevant part, the
following:

               Agent Thomas said . . . he had been a narcotics officer for the past 11
       years . . . and that during the previous month, he . . . had seen the name of
       codefendant Corley on “pseudoephedrine logs” and that . . . Corley “had a
       history of purchasing pseudoephedrine dating back to August 2012,” and that
       such purchases were made at “varying stores in Gibson and Madison Counties,”
       the most recent purchase being on January 30, 2013[.] Agent Thomas further
       stated that . . . he believed that the frequency of Corley‟s purchases indicated
       that he was using them to manufacture methamphetamine.
                                               -4-
             Agent Thomas also disclosed that Corley had been convicted on three
       previous methamphetamine offenses in the year, 2000.

              Agent Thomas also related . . . that evidence of methamphetamine
       manufacturing remains at the locus of such manufacturing for “months, even
       years” after such manufacturing has taken place.

             Finally, Agent Thomas claimed . . . to have received information from a
       “concerned citizen” that Thomas said he has known for more than five years
       and who . . . Thomas[ ] has always known to be truthful “in other matters.”

             This “concerned citizen,” . . . told Thomas that he/she had “personal
       knowledge” that Corley had been ingesting methamphetamine during the
       previous 90 days prior to Thomas‟s request for a warrant.

        The trial court denied the motion to suppress, and the Defendant requested an appeal
pursuant to Tennessee Rule of Appellate Procedure 9. The trial court concluded, in relevant
part, that the issue was appealable, that the issue was dispositive of the case, and that the
Defendant would suffer irreparable injury if the appeal were not permitted. See T.R.A.P. 9.
The Defendant then filed an application with this court for permission to appeal the decision,
which was granted. See T.R.A.P. 9(b).

        In Tennessee, a search warrant must be issued on a finding of probable cause and
supported by an affidavit that “sets forth facts tending to establish” probable cause. T.C.A.
§§ 40-6-103, -104; see State v. Williams, 193 S.W.3d 502, 506 (Tenn. 2006). “Probable cause
generally requires reasonable grounds for suspicion, supported by circumstances indicative of
an illegal act.” Williams, 193 S.W.3d at 506 (citing State v. Stevens, 989 S.W.2d 290, 293
(Tenn. 1999)). The issuing magistrate should use common sense when determining whether
the affidavit supports a finding of probable cause. State v. Carter, 160 S.W.3d 526, 533
(Tenn. 2005). We review an issuing magistrate‟s probable cause determination with great
deference. State v. Melson, 638 S.W.2d 342, 357 (Tenn. 1982) (citing United States v. Melvin,
596 F.2d 492, 498 (1st Cir. 1979)).

        Our standard of review in determining whether a search warrant is based upon probable
cause 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).
“In reviewing the existence of probable cause for issuance of a warrant, we may consider only
the affidavit and may not consider any other evidence known by the affiant or provided to or
possessed by the issuing magistrate.” Carter, 160 S.W.3d at 533. A supporting affidavit must
establish a nexus between the criminal activity, the place to be searched, and the things to be
seized. State v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009) (citing State v. Reid, 91 S.W.3d
247, 273 (Tenn. 2002)). “Courts also should consider the nature of the property sought, the
                                               -5-
normal inferences as to where a criminal would hide the evidence, and the perpetrator‟s
opportunity to dispose of incriminating evidence.” Reid, 91 S.W.3d at 275.

       When assessing the reliability of information provided by an informant, our courts
distinguish between “citizens,” or “bystanders,” and “criminal informants,” or people of the
“criminal milieu.” Williams, 193 S.W.3d at 507. Citizens provide information to the police
out of civic duty or concern for their own safety and are presumed credible. State v. Smith,
867 S.W.2d 343, 347 (Tenn. Crim. App. 1993). A citizen informant‟s information is
presumed reliable if (1) the person is known to the police, (2) the person is not part of the
criminal milieu, and (3) the person‟s motivation is to aid the police without any expectation of
payment. State v. Bishop, 431 S.W.3d 22, 38 (Tenn. 2014). Disclosure of a citizen
informant‟s name is not required, but “the source and the information must be judged from all
of the circumstances and from the entirety of the affidavit.” Melson, 638 S.W.2d at 356.

       Criminal informants are not presumed credible. Smith, 867 S.W.2d at 347. When an
affidavit contains information from an informant who is not presumed credible, Tennessee
courts determine credibility using the test developed by the Supreme Court in Aguilar v. Texas
and Spinelli v. United States. See State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989)
(adopting two-pronged Aguilar-Spinelli test); see also Aguilar v. Texas, 378 U.S. 108 (1964);
Spinelli v. United States, 393 U.S. 410 (1969).

       The Aguilar-Spinelli test requires that the affidavit include evidence of (1) the
informant‟s basis of knowledge and (2) of the credibility of the informant or of the reliability
of the informant‟s information. Bishop, 431 S.W.3d at 38 (Tenn. 2014); see Stevens, 989
S.W.2d 290. “Probable cause may not be found until both prongs are independently
considered and satisfied.” Stevens, 989 S.W.2d at 294 (citing State v. Ballard, 836 S.W.2d
560, 562 (Tenn. 1992)). Our supreme court has cautioned against a “hypertechnical”
application of the Aguilar-Spinelli test. Jacumin, 778 S.W.2d at 436; see Bishop, 431 S.W.3d
at 38.

        In regard to assessing the reliability of information and the credibility of the informant,
our supreme court concluded in State v. Stevens that although a search warrant affidavit stated
that a “concerned citizen source” acting on “civic duty” without requesting payment provided
information about a methamphetamine cook site, the informant could not be presumed
credible based on the circumstances of the informant‟s knowledge. Stevens, 989 S.W.2d at
294. The informant detailed the cooking process he observed and provided a sample of the
methamphetamine to police. Id. at 292. The court held that absent an explanation of why the
informant was at a methamphetamine cook site, recognized methamphetamine, and was able
to leave with the finished product, he could not be presumed credible. Id. at 294.

       However, if an informant‟s tip fails either prong of the Aguilar-Spinelli test, the
affidavit may establish probable cause through independent police corroboration. Jacumin,
                                                -6-
778 S.W.2d at 436 (citing Commonwealth v. Upton, 476 N.E.2d 548, 557 (Mass. 1985)).
“The credibility of informants‟ information may also be buttressed by independent
corroboration of its details. However, it is not necessary to corroborate every detail of the
informant‟s information.” Bishop, 431 S.W.3d at 38. Corroboration may involve non-
criminal activity, but it must be “of more than a few minor elements of the informant‟s
information.” State v. Smotherman, 201 S.W.3d 657, 664 (Tenn. 2006) (citing State v. Moon,
841 S.W.2d 336, 342 (Tenn. Crim. App. 1992)). “Corroboration of „only innocent aspects of
the story‟ may suffice.” Bishop, 431 S.W.3d at 38 (quoting Melson, 638 S.W.2d at 355).

        A trial court‟s findings of fact on a motion to suppress are conclusive on appeal unless
the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);
State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the
“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. The prevailing party is entitled to 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); see State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The
trial court‟s application of the law to its factual findings is a question of law and is reviewed
de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

       The informant in the present case was described as a “confidential concerned citizen”
with “personal knowledge” that the codefendant had ingested methamphetamine in the past
ninety days. The affidavit does not explain the basis for the informant‟s knowledge, such as
where the ingestion occurred, whether the informant personally saw the codefendant ingest the
methamphetamine, why the informant recognized methamphetamine, and why the informant
was present in a place where people were ingesting illegal drugs. See Stevens, 989 S.W.2d at
294. Agent Thomas‟s statements that he had known the informant for five years and that the
informant was always “truthful in other matters” was conclusory and, standing alone, was
insufficient to establish the informant‟s credibility. See Moon, 841 S.W.2d at 338. In light of
the limited information provided as to the informant‟s source of knowledge, we conclude that
the informant could not have been presumed credible and that the tip was not reliable in the
absence of corroborating evidence.

        Regarding the remaining evidence contained in the affidavit, we cannot conclude that
either piece of information produced by the police corroborated the informant‟s tip to the
extent that it corroborated the information contained in the tip and established probable cause.
The record reflects that the police performed a background check and examined the
pseudoephedrine purchase logs before seeking a warrant. The record does not reflect the
nature of the methamphetamine offenses for which the codefendant was convicted in federal
court thirteen years previously, and, in any event, these convictions were too remote in time to
corroborate the tip. Similarly, the codefendant‟s name on the pseudoephedrine purchase log
does not corroborate the informant‟s tip because the informant‟s tip did not involve
                                               -7-
methamphetamine manufacture, only ingestion. The affidavit does not reflect the frequency
and quantity of pseudoephedrine purchases by the Defendant. We agree with the Defendant
that the locations of the purchases carry less weight than the frequency of the purchases,
which information was not provided in the affidavit. Purchasing pseudoephedrine while
having thirteen-year-old, drug-related convictions might raise suspicion to warrant further
investigation, but we conclude that this information does not sufficiently corroborate the tip to
establish probable cause for issuance of the search warrant.

        Finally, the affidavit fails to establish a nexus between the evidence sought—items
used to manufacture methamphetamine—and the codefendant‟s home. The prosecutor told
the trial court that the affidavit contained an assertion that “manufacture[] is typically done at
the home,” and later said, “[H]e lists in the affidavit, that typically manufacturers of
methamphetamine do it in their home.” However, the affidavit contains no such statements.
The prosecutor also told the court that he thought the codefendant‟s federal convictions were
“manufacturing conviction[s],” but the affidavit states that the codefendant had three
“methamphetamine convictions” in federal court. Although these facts, if true, would support
finding a nexus between the evidence sought and items to be seized, the court did not
reference them in its findings of fact. Aguilar, 378 U.S. at 109, n. 1 (stating that a court
reviewing the probable cause determination of a magistrate is limited to the information
contained in the affidavit). Because the affidavit fails to establish the nature of the
codefendant‟s prior criminal record or that methamphetamine manufacture commonly occurs
in the home, an insufficient nexus exists between the codefendant‟s home and the evidence
sought.

        Because the “corroborating” evidence was insufficient to render the informant‟s tip
reliable and the affidavit failed to establish a nexus between the codefendant‟s home and the
evidence sought, we conclude that the supporting affidavit failed to establish probable cause to
issue the search warrant.

       As the search warrant was invalid due to insufficient evidence in the supporting
affidavit, we do not reach the issue of whether the issuing magistrate‟s omission of the year on
the search warrant affected its validity.

        In consideration of the foregoing and the record as a whole, we reverse the order of the
trial court and remand the case for further proceedings in which the evidence obtained
pursuant to the invalid warrant shall be suppressed.


                                            ____________________________________
                                            ROBERT H. MONTGOMERY, JR., JUDGE



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