        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                November 13, 2013 Session

               STATE OF TENNESSEE v. MICHAEL A. TALLEY

                Direct Appeal from the Circuit Court for Maury County
                        No. 21635    Stella L. Hargrove, Judge




                No. M2013-00490-CCA-R3-CD - Filed January 24, 2014


This is an appeal as of right by the State after dismissal of charges following the trial court’s
order which granted the motion to suppress evidence filed by Defendant, Michael A. Talley.
The evidence which was ultimately suppressed had been seized pursuant to a search warrant.
Defendant’s motion asserted that the affidavit filed in support of the issuance of the search
warrant lacked probable cause to justify the search. Following a hearing, the trial court took
the matter under advisement. Ultimately the trial court entered an order granting the motion
to suppress and subsequently entered an order which dismissed the cases in Docket No.
21635 in the Circuit Court of Maury County “[d]ue to suppression of the evidence.” After
a thorough review of the law and the entire record, we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; T. Michel Bottoms, District Attorney General; and Brent Cooper, Assistant District
Attorney General, for the appellant, State of Tennessee.

Claudia S. Jack, District Public Defender; and Robin Farber, Assistant Public Defender,
Columbia, Tennessee, for the appellee, Michael A. Talley.
                                          OPINION

Background

       The Maury County Grand Jury returned a three-count indictment in Docket No. 21635
that charged Defendant with the following criminal offenses:

        Count 1: Felonious sale, on April 12, 2012, of marijuana in an amount not
        less than one-half ounce within one thousand feet of a school;

        Count 2: Possession with intent to sell, on April 13, 2012, of more than
        one-half ounce of marijuana within one thousand feet of a school.

        Count 3: Possession, on April 13, 2012, of drug paraphernalia.

       Counts 2 and 3 resulted from a search of a residence located at 1182 Trotwood
Avenue in Columbia. The record does not definitively state the incident which led to the
charges in Count 1, but the affidavit filed in support of issuance of a search warrant states
that within seventy-two (72) hours of the making of the affidavit, a confidential informant
“made a controlled purchase of a felony amount of marijuana from a male subject at 1182
Trotwood Avenue in Columbia, TN.” Whether or not that statement in the affidavit
references the charge against Defendant in Count 1, there is no question that Defendant’s
motion to suppress did not pertain to any evidence of the indicted charge for sale of
marijuana.

        On April 13, 2012, Agent David Stanfill of the Maury County Sheriff’s Drug Unit
applied for the search warrant to search the premises of 1182 Trotwood Avenue in Columbia.
The application for search warrant contains a section designated as “Statement of Facts in
Support of Probable Cause.” Agent Stanfill represented that he had fifteen years experience
as a law enforcement officer, including nine years as a narcotics investigator. He also stated
that he had participated in the execution of more than one hundred search warrants in
narcotics trafficking cases. Agent Stanfill’s affidavit set forth the pertinent relevant facts
specifically applying to the residence at 1182 Trotwood Avenue in a single paragraph.
However, for clarity of the content of the affidavit as it relates to whether probable cause was
established for a search of those premises, we will set forth the allegations as a list of each
sentence contained therein:

               Within the past 72 hours officers did make a controlled purchase of
        a felony amount of marijuana from a male subject at 1182 Trotwood
        Avenue in Columbia, TN.

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                Officers met with a cooperating individual (known as C.I. from here
        on).

               The C.I. was searched and the C.I.’s vehicle was searched for
        contraband and nothing was found.

             The C.I. was then fitted with a digital recording device and given an
        amount of money to purchase the marijuana.

               The C.I. was then followed to 1182 Trotwood Ave. where the
        transaction was to occur.

                The C.I. was seen entering the downstairs apt. marked 1182 on the
        left side of the door. The C.I. was seen exiting the apartment a short time
        later and got back into their [sic] vehicle and leave.

               The C.I. was then followed back to a predetermined location where
        the C.I. turned over the felony amount of marijuana to your affiant.

              The C.I. and the C.I.’s vehicle were searched again for contraband
        and nothing was found.

              The C.I. was followed by law enforcement officers to and from 1182
        Trotwood Ave. and made no other[] stops.

       There was no testimony presented at the suppression hearing. Arguments of counsel
for both parties properly focused entirely on the language within the “four corners” of the
search warrant. Defendant’s motion to suppress was based upon what he asserted to be two
general defects in the search warrant and affidavit. First, Defendant argued the search
warrant was invalid because it did not properly specify the address of the premises to be
searched. The trial court found no merit in this issue, and Defendant has not cross-appealed
this ruling in the State’s appeal of the granting of the motion to suppress based upon
Defendant’s second issue. Accordingly, we will not further discuss this issue.

       Second, Defendant asserted, and the trial court agreed, that the evidence seized during
the April 13, 2013, search must be suppressed because the affidavit failed to provide
sufficient evidence of the veracity and basis of knowledge of the confidential informant.
Specifically, the trial court made the following findings and conclusions in its order granting
the motion to suppress:



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                It is Defendant’s position that the Affidavit demonstrates neither the
        basis of knowledge nor the reliability or veracity of the C.I.’s information.
        It merely states that the C.I. was wired and turned over a felony amount of
        marijuana to the officers. There is no description in the Affidavit of the
        person from whom the marijuana was purchased. There is nothing in the
        Affidavit as to whether the C.I. knew the Defendant. There is nothing in
        the Affidavit as to whether one or more persons were present in the
        residence. There is nothing in the Affidavit as to where in the residence the
        buy actually took place. There is nothing in the Affidavit as to whether the
        wire was monitored by law enforcement or whether law enforcement
        learned something from the recording after the alleged buy, leading to
        grounds for a search warrant. The affidavit merely states that the CI. was
        fitted with a digital recording device. There is nothing in the Affidavit as
        to any field test of the marijuana handed over by the C.I. or documentation
        as to training and experience the officers had in identifying marijuana.
        There is nothing in the Affidavit as to what information the C.I. might have
        relative to additional marijuana in the residence.

               It appears to be the State’s position that since the C.I. entered and
        exited 1182 Trotwood Avenue and turned over marijuana to officers, it
        must be the Defendant who sold the marijuana and there must be more
        marijuana at the residence. There is absolutely nothing in the Affidavit to
        vouch for the reliability or credibility of any information given by the C.I.
        There is absolutely nothing in the Affidavit to demonstrate the basis of
        knowledge of the C.I. Indeed, the Affidavit contains no information either
        given by the C.I. or knowledge known by the C.I. The Court finds there is
        nothing in the Affidavit beyond conclusory allegations.

                The Court finds that the two prongs of Aguilar-Spinelli are not
        satisfied and grants Defendant’s Motion to Suppress. Independent police
        corroboration fails to provide sufficient support to satisfy the two-pronged
        analysis for the cooperating individual’s veracity and basis of knowledge.

       The State presents one legal argument in support of its appeal. The State
acknowledges that the “Aguilar-Spinelli” test adopted in State v. Jacumin, 778 S.W.2d 430,
436 (Tenn. 1989) provides that: (1) an affidavit submitted in support of issuance of a search
warrant must state probable cause to believe that the substances sought to be seized by the
search warrant were located at the place to be searched at the time the warrant was issued;
and (2) the affidavit must provide sufficient information to establish the veracity and basis
of knowledge of the informant. Id. (citing Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli

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v. United States, 393 U.S. 410 (1969). However, in its brief on appeal, the State also argues
the following position as its basis for appellate relief:

                However, the Aguilar-Spinelli test does not apply to this case
         because the probable cause was not based on information provided by the
         C.I. Instead, it was established solely by the affiant’s [Agent Stanfill]
         personal observations and monitoring during the purchase. (emphasis
         added)

      The State further relies on the following language from State v. Moon, 841 S.W.2d
336 (Tenn. Crim. App. 1992),

                 [T]he reliability of the investigating officer/affiant may be presumed
         by a magistrate, as may be the reliability of other investigating officers upon
         whom the affiant relies [citation omitted]. Thus, no special showing of
         reliability is necessary when the information comes from such an officer.

Id., at 338, n. 1.

       The State correctly points out that the veracity of an officer affiant does not have to
be independently established in the affidavit. However, what the State fails to recognize or
acknowledge is that the other requirements of Jacumin, that the affidavit must establish
probable cause to believe that the contraband to be searched for is actually located at the
premises to be searched at the time the search warrant is issued, is not dispensed with simply
because the affiant is a police officer.

       This court has succinctly stated that,

                To establish probable cause an affidavit must set forth facts from
         which a reasonable conclusion may be drawn that the evidence will be
         found in the place for which the warrant authorizes a search. State v. Vann,
         976 S.W.2d 93, 105 (Tenn. 1998); State v. Longstreet, 619 S.W.2d 97, 99
         (Tenn. 1981).

State v. Hayes, 337 S.W.3d 235, 256 (Tenn. Crim. App. 2010).

        Relying solely upon the unpublished opinion of State v. Linda K. Batts, No. W2006-
00419-CCA-R3-CD, 2007 WL 1015444, at *9 (Tenn. Crim. App. April 4, 2007), the State
argues “A single drug transaction can establish probable cause.” The State goes on to argue
in its brief,

                                                -5-
         The affiant alone, Agent David Stanfill, provided the necessary probable
         cause to obtain a search warrant because it was based on his observations
         during the controlled purchase with no reliance on information from the
         C.I., or the C.I.’s observations. Therefore, the C.I.’s “basis of knowledge”
         and “veracity” are not at issue, and the two-prong Aguilar-Spinelli test is
         not triggered.

        The State asserts that for the purpose of establishing probable cause, it does not matter
that Agent Stanfill did not disclose what, if anything, was recorded on the digital recording
equipment that was fitted on the C.I. Also, the State argues that the failure of Agent Stanfill
to field test the marijuana brought to him by the C.I. does not negate probable cause to search
the premises at 1182 Trotwood Avenue in Columbia. The summary of alleged facts shown
in the affidavit, according to the State’s theory on appeal, is set forth in its brief as follows:

                 The affidavit reflects that Agent Stanfill orchestrated the controlled
         purchase and monitored its progress; the controlled purchase occurred
         within 72 hours of the request for a search warrant; the C.I. was searched
         prior the purchase; the C.I. returned from the defendant’s residence with
         marijuana; and the C.I. was again searched after the controlled purchase.
         (I, 7-8). Thus, the affidavit contains the requisite probable cause that the
         C.I. obtained the marijuana from the Defendant’s residence and sufficiently
         established that evidence of a crime would be found there.

(emphasis added)

        We emphasized portions of the State’s argument because they are highly relevant to
our analysis and the ultimate disposition of this case. In its appeal, the State has framed the
issue and legal theory for relief in its argument. Accordingly we shall limit our analysis to
the issue and legal theory presented on appeal.

Analysis

       As relevant to our disposition in this appeal, we are guided by our supreme court’s
opinion in State v. Saine, 297 S.W.3d 199 (Tenn. 2009). In Saine the court set forth the
applicable law as follows:

                A sworn and written affidavit containing allegations from which a
         magistrate may determine whether probable cause exists is an
         “indispensable prerequisite” to the issuance of a search warrant. State v.
         Henning, 975 S.W.2d 290, 294 (Tenn. 1998). The affidavit must present

                                               -6-
        facts from which a “‘neutral and detached magistrate, reading the affidavit
        in a common sense and practical manner’” may determine the existence of
        probable cause for issuance of the search warrant. [citations omitted]. “To
        ensure that the magistrate exercises independent judgment, the affidavit
        must contain more than mere conclusory allegations by the affiant.”
        Henning, 975 S.W.2d at 294.

                To establish probable cause, the affidavit must show a nexus among
        the criminal activity, the place to be searched, and the items to be seized.
        State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002); State v. Smith, 868 S.W.2d
        561, 572 (Tenn. 1993). In determining whether the nexus has been
        sufficiently established, we “consider whether the criminal activity under
        investigation was an isolated event or a protracted pattern of conduct [,] . . .
        the nature of the property sought, the normal inferences as to where a
        criminal would hide the evidence, and the perpetrator’s opportunity to
        dispose of incriminating evidence.” [citations omitted]

               In determining whether probable cause supports the issuance of a
        search warrant, reviewing courts may consider only the affidavit and may
        not consider other evidence provided to or known by the issuing magistrate
        or possessed by the affiant.

Saine, 297 S.W.3d at 205-06.

        We have previously set forth herein, sentence by sentence, the facts given by Agent
Stanfill in his affidavit, which the State submits provides the probable cause necessary to
justify the issuance of a search warrant for 1182 Trotwood Avenue in Columbia. The
affidavit does not provide a name or any physical description (age, race, hair description,
height, weight, etc.) of the “male subject” at 1182 Trotwood Avenue. The affidavit does not
state that the “male subject” is Defendant. Likewise, the affidavit does not state that either
the “male subject” nor Defendant resides at, frequents, occasionally spends the night or has
any other attachment to the premises of 1182 Trotwood Avenue, beyond the fact that the
unidentified and undescribed “male subject” was inside the premises of 1182 Trotwood
Avenue for a “short time” sometime within 72 hours (three days) before the search warrant
was issued. Furthermore, if we accept the State’s invitation to consider only what Agent
Stanfill observed “with no reliance on information from the C.I., or the C.I.’s observations,”
(State’s brief, p. 8), we must not even consider that the person who allegedly provided the
“felony amount of marijuana” was a “male subject.” From a plain reading of the affidavit,
Agent Stanfill never saw any person in or around 1182 Trotwood Avenue other than the C.I.



                                              -7-
Thus, the fact that a “male subject” sold the marijuana to the C.I. could only have been
obtained by information from the C.I. based upon the C.I.’s observations.

       Furthermore, the affidavit fails to state who owns the premises of 1182 Trotwood
Avenue, or who rents it or pays for any utilities for the premises. In fact, relying solely upon
Agent Stanfill’s observations, as the State argues we should do, there is nothing to suggest
in the affidavit that 1182 Trotwood Avenue was at the time being used as a residence.
Directions to the address to be searched contained in the warrant notes that 1182 Trotwood
Avenue is a downstairs apartment to a house that sits on a corner of two streets, with the
upstairs portion having an address of 96 Westover Drive. However, this information leaves
to speculation as to whether the apartment was used as a residence at the time the search
warrant was issued.

       The emphasized portion of the State’s argument reveals factual allegations in the
State’s argument that simply were not set forth anywhere within the affidavit. Nowhere
therein is it mentioned, nor can it be inferred, that Defendant, or for that matter anybody else,
resides at 1182 Trotwood Avenue. Therefore, there is nothing to even hint that marijuana
was still located inside 1182 Trotwood Avenue at the time the search warrant was issued.
Essentially, all that can be gleaned solely from Agent Stanfill’s observations are that:

              (1) A C.I. was met by officers, and the C.I. and the C.I.’s vehicle
        were searched and no contraband was found.

              (2) The C.I. was fitted with a digital recording device and was given
        “an amount of money” to purchase marijuana. If anything was recorded, it
        was not divulged to the magistrate by Agent Stanfill.

                (3) The officers followed the C.I. to 1182 Trotwood Avenue.

              (4) The C.I. got out of his vehicle and entered the premises of 1182
        Trotwood Avenue. A short time later the C.I. exited 1182 Trotwood
        Avenue returned to the C.I.’s vehicle, and drove away.

                (5) Officers followed the C.I. to a predetermined location where the
        C.I. gave a “felony amount” of marijuana to Agent Stanfill. The C.I. and
        his vehicle were again searched and no contraband was found. Apparently
        there was not a search of the C.I. or his vehicle, for money, either before or
        after the C.I.’s trip to 1182 Trotwood Avenue.




                                               -8-
               (6) Officers continually observed the C.I. when the C.I. was traveling
        to and from 1182 Trotwood Avenue, and the C.I. and made no stops along
        the way either time.

        As noted above, the State asserts that “A single drug transaction can establish
probable cause” in support of its argument that the above delineated facts justified issuance
of the search warrant in this case and cites State v. Linda Kay Batts as authority. We now
examine the unpublished case of this court which the State relies upon. We first
acknowledge that Linda Kay Batts was a unanimous opinion of a panel of this court and was
authored by the same judge who authors the opinion in the case sub judice. As an
unpublished opinion, it is only persuasive authority. Rule of the Supreme Court of the State
of Tennessee 4(G)(1). Thus, the analysis in Linda Kay Batts can be readily rejected under
appropriate circumstances.

        After review, we herein reject the analysis in Linda Kay Batts. Consequently, based
upon our review of Linda Kay Batts, we also reject the State’s interpretation of that case’s
holding. Linda Kay Batts should not have been written to be as broadly interpreted in the
manner asserted by the State. In Linda Kay Batts the critical issue was whether police
corroboration was sufficient to cure any deficiencies in the information detailing an
informant’s basis of knowledge and veracity. 2007 WL 1015444, at *9. It is correct that the
panel in Linda Kay Batts relied upon two cases, and stated that in each case probable cause
was based on a single drug purchase. Our present review of those cases leads us to conclude
that to the extent Linda Kay Batts is interpreted to imply that all that is required to establish
probable cause to search a residence is “a single drug transaction,” it should be overruled.

       The cases relied upon in Linda Kay Batts were, (1) State v. Powell, 53 S.W.3d 258,
263 (Tenn. Crim. App. 2000) about which the panel in Linda Kay Batts said “probable cause
was based on a single drug purchase which occurred within seventy-two hours of the
issuance of the search warrant;” and (2) State v. Wanda Booker, No. M2005-02788-CCA-R3-
CD, 2006 WL 3498085, at *1 (Tenn. Crim. App., Nov. 21, 2006), about which the Linda Kay
Batts panel stated “probable cause for a warrant was based on a single controlled buy of an
unspecified quantity of crack cocaine.” Linda Kay Batts, 2007 WL 1015444, at *9.

       In Powell, as relevant to the case sub judice, one of the grounds used to grant
defendant’s motion to suppress evidence seized pursuant to a search warrant was that “the
affidavit did not show the credibility of the confidential informant.” Powell, 53 S.W.3d at
260. This court held that both the informant’s basis of knowledge, and the informant’s
veracity were established by police corroboration of a controlled purchase of
methamphetamine. Id. at 263. Powell is inapplicable to the case sub judice because the State
basically concedes that no information from or observations made by the C.I. can be

                                               -9-
considered to establish probable cause. In any event, in Powell the affidavit stated that the
C.I. “personally observed more methamphetamine, on the property [searched], which was
packaged in a manner consistent to that which was purchased by the C.I.” Powell, 53 S.W.3d
at 263. In Powell, this court did not in any fashion hold that all that is required to establish
probable cause to search a residence is a single drug transaction. Similarly, the opinion in
Wanda Booker does not hold that a single drug transaction, by itself, can always establish
probable cause to justify issuance of a search warrant. The issue in Wanda Booker was
whether the trial court erred in granting a motion to suppress evidence because “the search
warrant failed to state any facts which would have provided the magistrate a basis in which
to determine the inherent credibility of the confidential informant.” Wanda Booker, 2006
WL 3498085, at *1. The panel of this court in Wanda Booker concluded that any
deficiencies in the facts concerning the confidential informant’s basis of knowledge and
veracity were cured by independent police corroboration, which was the observations made
by police officers during a controlled drug purchase, and not the mere fact a drug transaction
was made.

        In the Linda Kay Batts opinion, the panel of this court incorrectly described the
relevant holds of Powell and Wanda Booker. There is no holding in either case which lends
any authority to the argument that “a single drug transaction can establish probable cause”
in the sense that any single drug transaction, no matter the circumstances, can always provide
probable cause to justify issuance of a search warrant. To the extent Linda Kay Batts may
imply that proposition, it should be rejected and overruled.

        Examination of the affidavit in this case in the manner and method relied upon by the
State, we conclude that it was woefully inadequate to establish probable cause, due to the
failure to supply necessary information as detailed herein. Consequently, the State’s appeal
is without merit.

       The judgment of the trial court is affirmed.


                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




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