           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                        March 9, 2004 Session

            STATE OF TENNESSEE v. JONATHAN ABERNATHY, JR.

                           Appeal from the Circuit Court for Giles County
                               No. 10552    Jim T. Hamilton, Judge



                        No. M2003-01452-CCA-R3-CD - Filed April 21, 2004


The Defendant, Jonathan Abernathy, Jr., was convicted by a jury of tampering with evidence.1 In
this appeal, the Defendant argues that the trial court erred by not suppressing testimony of police
officers regarding the actions they witnessed the Defendant take during their search of his residence.
He contends that the search was illegal because the search warrant that the officers executed at his
residence was invalid; therefore, the officers should have been precluded from testifying as to what
they witnessed while they were at the Defendant’s residence. We affirm the judgment of the trial
court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE, JJ., joined.

Stanley K. Pierchoski, Lawrenceburg, Tennessee, for the appellant, Jonathan Abernathy, Jr.

Paul G. Summers, Attorney General and Reporter; Richard Dunavant, Assistant Attorney General;
and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION


        On March 1, 2002, a search warrant was issued in Giles County authorizing the search of the
mobile home at 551 Cherry Street in Pulaski, the Defendant’s residence. The issuance of the warrant
was based on information received by Officer L.C. Gill of the Pulaski Police Department from an
informant that the Defendant was selling cocaine from the residence. That same day, police officers
executed the search warrant at the Defendant’s house. At the time the warrant was executed, the
Defendant was at home with his brother, his son, and his uncle. Officer Gill secured the individuals
in the kitchen of the residence, then brought in a dog trained to detect illegal drugs. The dog alerted

       1
           See Tenn. Code Ann. § 39-16-503.
the officers to a general location, and the officers began to search for drugs. The Defendant was
being disruptive, so the officers placed him in a back bedroom. On the bedroom floor, Officer Gill
found a small rock-like substance, which a forensic chemist with the Tennessee Bureau of
Investigation determined to contain cocaine.

         Subsequently, one of the officers who was searching the bathroom yelled for Officer Gill.
The officer was looking in the commode, and Officer Gill saw that there was a plastic bag wrapped
in toilet paper in the commode. Joey Turner, the officer who discovered the bag, testified that the
bag appeared to contain crack cocaine. The Defendant said, “[T]hat ain’t no dope.” Then the
Defendant lunged between the officers, reached into the toilet bowl, grabbed the bag wrapped in
toilet paper, and “put it in his mouth.”2 The officers began to struggle with the Defendant, and he
began choking. Blood was coming from his mouth and nose. During the struggle, the Defendant
kicked the bathroom door, which hit Officer Brandon Beard in the head, causing it to bleed. Though
the officers had placed the Defendant in handcuffs, they took off the restraints because he was “going
limp” and appeared to be having trouble getting air. When they took off the handcuffs and put the
Defendant on the floor, he “jumped up, dove for the commode, and he put his head in the commode
and flushed it about the same time.” Although the officers tried to get the plastic bag, by this time
the Defendant had spit it into the toilet and flushed it and it was too late. The officers called the
sewer system to have the lines flushed, but the bag was never found. Based on this evidence, the
Defendant was indicted for possession of cocaine, tampering with evidence, and assault. After a jury
trial, he was acquitted on the possession of cocaine and assault charges, but was convicted of
tampering with evidence.

         The sole issue in this direct appeal is whether the trial court erred by not suppressing the
officers’ testimony regarding the Defendant attempting to swallow and finally flushing the bag down
the toilet. The Defendant argues that the court did so err because the affidavit supporting the search
warrant was inadequate to support a finding of probable cause; therefore, the officers’ testimony
constituted the fruit of an unlawful search.

         An affidavit has historically been viewed as an indispensable prerequisite to the issuance of
a search warrant in Tennessee. See Tenn. Code Ann. § 40-6-103. The affidavit must set forth on
its face facts which establish probable cause before a search warrant may issue. See id. § 40-6-104;
Tenn. R. Crim. P. 41(c). Probable cause to support the issuance of the warrant must appear in the
affidavit, 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. See State v.
Moon, 841 S.W.2d 336, 338 (Tenn. Crim. App. 1992). Also, essential to the process of obtaining
a search warrant is the requirement that the affidavit recite sufficient underlying facts and
circumstances to enable the issuing magistrate to “perform his detached function and not serve
merely as a rubber stamp for the police.” United States v. Ventresca, 380 U.S. 102, 109, 13 L. Ed.
2d 684, 85 S. Ct. 741 (1965).



       2
           Unfortunately for the Defendant, the water in the toilet was “discolored” by urine.

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        In State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989), the Tennessee Supreme Court rejected
the totality of the circumstances approach adopted by the Supreme Court of the United States in
Illinois v. Gates, 462 U.S. 213 (1983), for determining probable cause in affidavits based on
informant allegations. Our supreme court held that, under the Tennessee Constitution, probable
cause would be determined by the Aguilar-Spinelli two-pronged test. See Jacumin, 778 S.W.2d at
436. That test requires the establishment of the basis of knowledge and the veracity of the informant
supplying hearsay information. See id. at 432. The basis of knowledge prong requires that the
affidavit contain facts from which the magistrate may determine that the informant had a basis for
the claim regarding criminal conduct or contraband. See id.; see also Moon, 841 S.W.2d at 338.
The veracity prong requires that the affidavit contain facts from which the magistrate may determine
either the inherent credibility of the informant or the reliability of the information provided. See
Jacumin, 778 S.W.2d at 432; see also Moon, 841 S.W.2d at 338.

         While our supreme court cautioned against “hypertechnical” applications of the two-pronged
test, this test is the standard by which probable cause will be measured to determine whether the
issuance of a search warrant is proper under Article I, Section 7 of the Tennessee Constitution.
Jacumin, 778 S.W.2d at 436.

         We conclude that the affidavit upon which the judge relied in issuing the search warrant was
not defective. After stating that he believed the Defendant possessed cocaine and other contraband
at his residence, Officer Gill averred that

        his reasons for such belief are that within the last seventy-two hours an individual
        who is working with the affiant has been at [the Defendant’s residence] and seen
        crack cocaine being stored and sold. On this occasion the informant was present
        when [the Defendant] went inside the residence and retrieved several rocks of crack
        cocaine and sold them to an unidentified individual.
                The informant is familiar with the sale and packaging of crack cocaine. The
        informant has provided information in the past which has lead to the seizure of
        money associated with the sale of illegal narcotics, the seizure of illegal narcotics and
        the arrest of more than seven individuals that were involved in the sale of illegal
        narcotics.

After explaining in the affidavit that the Defendant had a reputation for and had been previously
arrested and indicted for selling illegal drugs, Officer Gill stated that he believed the information
provided by the informant “to be true and correct.”

        The affidavit satisfies both prongs of the Aguilar-Spinelli test. With respect to the basis of
knowledge prong, the affidavit alleges that the informant has seen crack cocaine being stored and
sold at the residence. The affidavit further states that the informant witnessed the Defendant go
inside his house and emerge with crack cocaine, which he then sold. This sufficiently demonstrates
the basis of the informant’s knowledge of the Defendant’s criminal activity. With respect to the
veracity prong, the affidavit states that, in the past, the informant’s information has led to the seizure


                                                   -3-
of illegal drugs and drug money and the arrest of seven people who were involved in the sale of
illegal drugs. Officer Gill also states in the affidavit that he believed the information to be true and
correct. This sufficiently demonstrates the credibility of the information given by the informant.
Therefore, both prongs of the Aguilar-Spinelli test have been satisfied, and the affidavit supports a
finding of probable cause for the issuance of the search warrant. The trial court did not err by
denying the Defendant’s motion to suppress the testimony of the officers based upon an illegal
search.

         Furthermore, even if the affidavit did not support a finding of probable cause, the trial court
did not err by allowing the officers to testify as to the actions they witnessed the Defendant take
regarding the bag in the toilet. This Court has previously held that evidence of a defendant’s
“criminal conduct committed subsequent to an illegal arrest, or even as a result thereof, should not
be suppressible under the exclusionary rule.” State v. Jerry Wayne Elliott, No. W1999-00361-CCA-
R3-CD, 2001 WL 13233, at *2 (Tenn. Crim. App., Jackson, Jan. 5, 2001). The court in Elliott cited
United States v. Sprinkle, 106 F. 3d 613 (4th Cir. 1997), in which the Court of Appeals held that
evidence of new criminal acts committed subsequent to an illegal stop and seizure constitutes an
exception to the “fruit of the poisonous tree” doctrine. See id. at 619. “There is a strong policy
reason for holding that a new and distinct crime, even if triggered by an illegal stop, is a sufficient
intervening event to provide independent grounds for arrest.” Id. (citing United States v. Bailey, 691
F. 2d 1009, 1017 (11th Cir. 1982)). “A contrary rule would virtually immunize a defendant from
prosecution for all crimes he might commit that have a sufficient causal connection to the police
misconduct.” Bailey, 691 F. 2d at 1017. In State v. Robert Lee Mallard, No. M2000-00351-CCA-
R3-CD, 2001 WL 178461, at *4 (Tenn. Crim. App., Nashville, Feb. 23, 2001), this Court held that
even if the seizure of the defendant was unconstitutional, the police had probable cause to arrest him
for tampering with evidence when he raised his closed hand to his mouth in an attempt to swallow
something after an officer told him to stop. The court reasoned:

                An illegal stop, arrest or seizure does not justify the total exclusion of
       whatever takes place after the illegal stop, seizure or arrest. This conclusion is
       especially true when applied to crimes committed subsequent to the illegal stop,
       seizure, or arrest. Such evidence is not obtained as a direct result of exploitation of
       a constitutionally infirm stop, arrest, or seizure. For instance, if an officer makes an
       illegal stop of a motor vehicle, and the driver of that vehicle subsequently gets out
       of his or her car and assaults the officer, prosecution for the assault, and any evidence
       seized as a result of an arrest for the assault, should not be suppressible even though
       there was an illegal stop of a vehicle.

Id.

         We find the reasoning in these cases persuasive. Here, even if the search of the Defendant’s
residence was illegal, his destruction of evidence was a sufficient intervening event to remove any
“taint” of the illegal search. The police officers were justified in arresting him for this crime, and
the trial court did not err by allowing the officers to testify as to the Defendant’s illegal conduct.


                                                  -4-
The judgment of the trial court is affirmed.



                                               ___________________________________
                                               DAVID H. WELLES, JUDGE




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