             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE                 FILED
                            MARCH 1997 SESSION
                                                               May 21, 1997

                                                           Cecil W. Crowson
STATE OF TENNESSEE,            )                          Appellate Court Clerk
                               )
             Appellee,         )     No. 01C01-9606-CR-00242
                               )
                               )     Sumner County
v.                             )
                               )     Honorable Jane W. Wheatcraft, Judge
                               )
DANNY RAY DORRIS,              )     (Certified Question of Law)
                               )
             Appellant.        )


For the Appellant:                  For the Appellee:

David Allen Doyle                   Charles W. Burson
District Public Defender            Attorney General of Tennessee
   and                                     and
Steven F. Glaser                    Peter Coughlan
Assistant Public Defender           Assistant Attorney General of Tennessee
117 East Main Street                450 James Robertson Parkway
Gallatin, TN 37066                  Nashville, TN 37243-0493

                                    Lawrence Ray Whitley
                                    District Attorney General
                                            and
                                    Dee Gay
                                    Assistant District Attorney General
                                    113 East Main Street
                                    Gallatin, TN 37066




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Danny Ray Dorris, appeals as of right upon reservation of

a certified question of law from the Sumner County Criminal Court. Upon his plea of

guilty, the defendant was convicted of felonious possession with the intent to sell

marijuana and sentenced to two years, with ninety days of his sentence to be served in

jail and the remainder of his sentence to be served in a community corrections

program. The case arose from a search of the defendant’s residence pursuant to a

warrant. The certified question of law that is dispositive of the case is stated as follows:



              Whether the information provided in the affidavit for the search
              warrant was sufficient to allow the magistrate to make the
              requisite independent determination of the reliability of the
              informant and the information sought to be relied upon.

We hold that probable cause was shown to render the search warrant valid.



              The affidavit of Jerry Carpenter, a drug task force officer, states as

follows:

                    YOUR AFFIANT HAS RECEIVED INFORMATION
              FROM A CONFIDENTIAL INFORMANT WHO STATED THAT
              DANNY R. DORRIS IS SELLING MARIJUANA FROM HIS
              RESIDENCE AT 199 LAWRENCE TOWN ROAD IN
              GALLATIN, SUMNER COUNTY TENNESSEE. WITHIN THE
              LAST (5) FIVE DAYS, SAID CONFIDENTIAL INFORMANT
              HAS MADE A CONTROLLED PURCHASE OF MARIJUANA
              FROM DANNY DORRIS INSIDE THE ABOVE DESCRIBED
              LOCATION.     BEFORE THE PURCHASE THE SAID
              INFORMANT AND INFORMANTS VEHICLE WERE
              SEARCHED FOR CONTRABAND AND NONE WAS FOUND.
              SAID INFORMANT WAS EQUIPPED WITH A POLICE
              CONSENSUAL LISTENING DEVICE AND GIVEN
              UNDERCOVER BUY MONEY TO PURCHASE MARIJUANA
              FROM DANNY DORRIS. SAID INFORMANT ALONG WITH
              INV. GREG BUNCH WERE THEN FOLLOWED BY YOUR
              AFFIANT AND INV. MONTY MCCURRY TO DORRIS’S
              RESIDENCE. SAID INFORMANT WAS THEN OBSERVED
              BY INV. GREG BUNCH TO ENTER THE RESIDENCE.
              YOUR AFFIANT AND INV. MONTY MCCURRY MONITORED
              AND RECORDED CONVERSATION BETWEEN DORRIS
              AND THE INFORMANT IN WHICH MARIJUANA WAS SOLD
              TO THE INFORMANT BY DANNY DORRIS. AFTER THE


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              PURCHASE THE SAID INFORMANT THEN GAVE INV.
              GREG BUNCH THE MARIJUANA WHICH THE INFORMANT
              STATED WAS PURCHASED FROM DANNY DORRIS. YOUR
              AFFIANT LATER FIELD TESTED THE SAID MARIJUANA
              WHICH FIELD TESTED POSITIVE AS MARIJUANA A SCH.
              VI CONTROLLED SUBSTANCE.

                   FURTHERMORE YOUR AFFIANT AND OTHER
              MEMBERS OF THE 18th JUDICIAL DISTRICT DRUG TASK
              FORCE HAVE RECEIVED INFORMATION THAT DANNY
              DORRIS HAS BEEN TRAFFICKING MARIJUANA FROM HIS
              RESIDENCE, 199 LAWRENCE TOWN ROAD GALLATIN,
              TENNESSEE. YOUR AFFIANT ALSO CONFIRMED THAT
              DORRIS HAS AT LEAST (3) THREE PREVIOUS ARRESTS
              AND CONVICTIONS FOR TRAFFICKING OR SELLING
              MARIJUANA.

                   SAID CONFIDENTIAL AND RELIABLE INFORMANT
              HAS PROVIDED YOUR AFFIANT WITH INFORMATION
              THAT HAS BEEN CORROBORATED WITH INFORMATION
              YOUR AFFIANT FOUND TO BE TRUE. THE CONFIDENTIAL
              AND RELIABLE INFORMANT HAS NEVER GIVEN YOUR
              AFFIANT INFORMATION THAT WAS FOUND TO BE FALSE.

The defendant contends that this affidavit fails to establish probable cause to believe

that he was possessing marijuana in his residence under the two-prong standard

provided in State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989), for evaluating informant

hearsay.



              In Jacumin, our supreme court held that under Article I, Section 7 of the

Tennessee Constitution probable cause based upon informant hearsay requires a

showing (1) of the informant’s basis of knowledge and (2) of either his credibility or the

reliability of his information. Id. at 432, 436. Relative to a search warrant, this means

that a magistrate must make a neutral and detached judgment that the affidavit before

him or her shows probable cause to issue the warrant. See State v. Moon, 841 S.W.2d

336, 338 (Tenn. Crim. App. 1992).



              As for the informant’s basis of knowledge, the defendant acknowledges

that a controlled purchase of marijuana by the informant occurred at the defendant’s




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residence, and that the informant said it was from the defendant. The defendant also

admits that the police aurally monitored the transaction by a hidden microphone.

However, he claims that the informant’s “uncorroborated” assertion that the defendant

was the seller makes his basis of knowledge “open to question.” As for the informant’s

reliability, the defendant claims that it was not shown in the affidavit other than through

the affiant’s assertion of reliability.



               The defendant’s arguments essentially carry a standard of absolute

certainty that is alien to search and seizure law, which is primarily based upon

reasonableness. The United States Supreme Court has defined probable cause as

“whether at that moment the facts and circumstances within [police] knowledge and of

which they had reasonably trustworthy information were sufficient to warrant a prudent

man in believing that the petitioner had committed . . . an offense.” Beck v. Ohio, 379

U.S. 89, 91, 85 S. Ct. 223, 225 (1964). See State v. Meeks, 876 S.W.2d 121, 124

(Tenn. Crim. App. 1993). Our supreme court has stated:

               In dealing with probable cause, one deals with probabilities.
               These are not technical; they are the factual and practical
               considerations of everyday life on which reasonable and
               prudent men, not legal technicians, act.

State v. Jefferson, 529 S.W.2d 674, 689 (Tenn. 1975).



               We believe that as a result of the live monitoring of a drug transaction at

the residence of the defendant, a known convicted drug dealer, whom the buying

informant, a person used by the police to gather information in previous successful

criminal drug investigations, said was the marijuana seller, there was probable cause to

believe that the defendant possessed marijuana, drug paraphernalia, or other evidence

of illegal drug dealings so as to justify the issuance of a search warrant for his

residence. No further analysis is needed.




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              In consideration of the foregoing, and the record as a whole, the judgment

of conviction is affirmed.



                                               ___________________________
                                               Joseph M. Tipton, Judge

CONCUR:



_________________________
Joe G. Riley, Judge



_________________________
Thomas T. W oodall, Judge




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