            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                           FEBRUARY SESSION, 2000       March 9, 2000

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,                 *            Appellate Court Clerk
                                    *     No. M1999-00246-CCA-R3-CD
      Appellee,                     *
                                    *     DAVIDSON COUNTY
vs.                                 *
                                    *     Hon. Seth Norman, Judge
SAMANTHA HEARD,                     *
                                    *     (Sale of Cocaine in excess of
      Appellant.                    *     .5 grams)


For the Appellant:                  For the Appellee:

Niles S. Nimmo                      Paul G. Summers
Realtors Building, Suite 200        Attorney General and Reporter
306 Gay Street
Nashville, TN 37201                 Marvin E. Clements, Jr.
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    2d Floor, Cordell Hull Building
                                    Nashville, TN 37243-0493


                                    Victor S. (Torry) Johnson III
                                    District Attorney General

                                    Charles A. Carpenter
                                    Asst. District Attorney General
                                    Washington Square, Suite 500
                                    222-2nd Avenue, N.
                                    Nashville, TN 37201-1649



OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                             OPINION



        The appellant, Samantha Heard, appeals from a judgment of conviction

entered by the Davidson County Criminal Court. The appellant pled guilty to one

count of sale of cocaine in excess of .5 grams, a class B felony. As a condition of

the plea agreement, the appellant reserved the right to appeal, as a certified

question of law, the trial court's denial of her motion to suppress. 1 See Tenn. R.

App. P. 3(b); Tenn. R. Crim. P. 37(b). Specifically, she asserts that the facts

alleged in the affidavit of the search warrant are insufficient to support a finding of

probable cause for the search of her person.



        After review of the record, we affirm the trial court’s denial of the motion to

suppress and affirm the judgment of conviction.




                                           Background



        On January 21, 1998, undercover Metro police arranged a “controlled buy” of

crack cocaine from a Darryl Dillard. The cocaine was obtained from a residence

located at 1413 A Lischey Avenue in Nashville. Officers learned that the electric

service at the address was in the name of Samantha Heard. On January 23rd, a

search warrant was issued “. . . to make an immediate search on the person or

premises of an unknown female black possibly Samantha Heard, and in the

premises used and occupied by them located and described as follows: A brownish

red brick duplex located at 1413 A Lischey Ave. . . .” On January 26th, Metro officers

arranged a second cocaine purchase from Dillard near the 1413 A Lischey address.


        1
          The appellant was charged by indictment with two counts of the sale of cocaine in excess
of .5 grams, one count of possession of cocaine less than .5 grams, and one count of possession
of firearms. Pursuant to the negotiated plea agreement, the court imposed an eight year
suspended se ntence and placed the app ellant on probation for eight years. All other counts were
“retired” upon forfeiture of the firearms.

                                                2
Immediately following the drug exchange, officers arrested Dillard and executed the

search warrant at 1413 A Lischey Ave.



      During execution of the warrant, officers discovered “four adults and a three

year old child in the residence.” Only one adult was a black female; this occupant

identified herself as Samantha Heard. During a search of the appellant’s person,

officers discovered, in her pocket, $80.00 of the $120.00 of marked money from the

immediate drug transaction with Dillard.



      The affidavit of Metro Police Officer Christine Estrada supporting issuance of

the January 23rd search warrant alleged, in pertinent part:

      . . . the undersigned Officer Christine Estrada makes oath in due form
      of law that there is probable and reasonable cause to believe that
      unknown femle (sic) black possibly Samantha Heard, is/are now in
      possession of certain evidence of a crime . . .
      ...

      The affiant further testifies that the said evidence is now located and
      may be found in possession of said persons or on said premises
      located in Davidson County, Tennessee, and more particularly
      described as follows: A brownish red brick duplex located at 1413 A
      Lishey Ave.

      This affidavit is made by Officer Christine Estrada . . . and is as
      follows:

      On 01/21/98 [Officer Estrada] acting in a [sic] undercover capacity was
      able to contact Darryl Lamont Dillard[2] and made arrangement [sic] to
      purchase 1/8 ounce of crack cocaine for $120.00 dollars. [Officer
      Estrada] was instructed by Darryl Lamont Dillard to come to the rear of
      1229 Lischey Ave. and pick Dillard up, that he would be standing in the
      doorway and then from there he would take [Officer Estrada] to make
      the purchase. [Officer Estrada] obtained $120.00 from vice funds to
      make the purchase and had a photo-copy of this made for
      identification at a later time. Sgt. Melvin Brown and [Officer Estrada]
      drove to 1229 Lischey Ave. and pulled to the rear which is a fenced
      back yard and observed Darryl Lamont Dillard standing in the
      doorway. Darryl Lamont Dillard came to [their] vehicle and got into the
      passenger [sic] side and then instructed Sgt. Melvin Brown and
      [Officer Estrada] where to drive him to. Darryl Lamont Dillard was
      given the $120.00 to make the purchase then let out of the vehicle at
      the intersection of Lischey Ave. and Marie St. and observed walking
      into the residence at 1413 A Lischey Ave. by Officer Ernie Cecil.
      Darryl Lamont Dillard stayed inside only a few moments and then


      2
          Dillard was charge d as a c o-defe ndant.

                                                      3
       exited the duplex and walked back to the intersection of Lischey Ave.
       and Marie St. where he was picked up by [Officer Estrada] and Sgt.
       Melvin Brown. Darryl Lamont Dillard handed [Officer Estrada] approx.
       four pieces of tan rock like substance which resembled crack cocaine.
       Darryl Lamont Dillard was returned to the area of 1229 Lischey Ave.
       and let out. The substance he handed [Officer Estrada] was later field
       tested and gave a positive reaction to cocaine. [Officer Estrada’s]
       check of NES showed the address of 1413 A Lischey has the
       electricity bill in the name of Samantha Heard.


The relevant portion of the search warrant provided:

       YOU ARE THEREFORE COMMANDED to make an immediate search
       on the person or premises of unknown female black possibly
       Samantha Heard, and in the premises used and occupied by them
       located and described as follows: a brownish red brick duplex located
       at 1413 A Lischey. . . .


       The trial court entered a written opinion addressing the appellant’s motion to

suppress. In its written findings denying the motion, the trial court found that the

officers observed a drug sale at 1413A Lischey Avenue. Although they did not

personally witness those involved in the drug transaction, “the officers determined

the name of the registered occupant of the premises” and requested that the

resident be included in the search warrant. Based on these facts, the trial court

concluded that probable cause existed supporting the issuance of the warrant.




                                       Analysis



       The appellant contends that the proceeds, i.e., the $80 cash, of the search of

her person should have been suppressed as the “fruit” of an unlawful search.

Although the appellant concedes “the factual sufficiency of Officer Estrada’s affidavit

to support a finding of probable cause by the magistrate for issuance of a warrant to

search the duplex,” she argues that “there was no factual basis upon which the

issuing magistrate could have found probable cause to believe that evidence of

cocaine trafficking could be found on the defendant’s person.” Specifically, she

contends that “there is no probable cause contained in the affidavit to support the


                                         4
issuance of a warrant to search [her person].” Indeed, she asserts that “there is an

absence of alleged facts from which the magistrate could have logically concluded

that ‘Samantha Heard’ was in any way involved in the affiant’s January 21, 1998,

buy of cocaine from Darryl Lamont Dillard.” Additionally, she asserts that the warrant

failed to sufficiently identify her as the person to be searched.



       In reviewing the denial of a motion to suppress, this court looks to the facts

adduced at the suppression hearing which are most favorable to the State as the

prevailing party. State v. Brian Daniel, No. E1997-OD142-SC-R11-CD (Tenn. at

Knoxville, Jan. 31, 2000) (for publication); State v. Danny Spradlin, No. E1995-

00019-SC-R11-CD (Tenn. at Knoxville, Jan. 31, 2000) (for publication); State v.

Keith, 978 S.W.2d 861, 864 (Tenn. 1998) (citing State v. Odom, 928 S.W.2d 18, 23

(Tenn. 1996)). In considering the evidence presented at the hearing, this court

extends great deference to the fact-finding of the suppression hearing judge with

respect to weighing credibility, determining facts, and resolving conflicts in the

evidence. Daniel, No. E1997-OD142-SC-R11-CD; Spradlin, No. E1995-00019-SC-

R11-CD; Keith, 978 S.W.2d at 864. Indeed, these findings will be upheld unless the

evidence preponderates otherwise. Daniel, No. E1997-OD142-SC-R11-CD;

Spradlin, No. E1995-00019-SC-R11-CD; Keith, 978 S.W.2d at 864. Although

deference is given to the trial court’s findings of fact, this court conducts its own

appraisal of the constitutional questions presented by reviewing the law and

applying it to the specific facts of the particular case. Keith, 978 S.W.2d at 864

(citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)).




       Initially, we address the appellant’s argument that the warrant failed to

identify her with sufficient particularity. To satisfy the constitutional particularity

requirements of the Fourth Amendment and Article I, Section 7 of the Tennessee

Constitution, the warrant must describe the person or place to be searched and the


                                            5
items to be seized with particularity. State v. Smith, 868 S.W.2d 561, 572 (Tenn.

1993), cert. denied, 513 U.S. 960, 115 S.Ct. 417 (1994). Consistent with this

requirement, Rule 41(c) of the Tenn. R. Crim. P. provides that if probable cause

exists, “the magistrate shall issue a warrant identifying the property and naming or

describing the person or place to be searched.” In this case, the affidavit identified

the person to be searched as “unknown femle (sic) black possibly Samantha

Heard.” Moreover, the search warrant commanded officers to make a search of an

“unknown female black possibly Samantha Heard” residing at the premises

described as “a red brick duplex located at 1413A Lischey.” Accordingly, we

conclude that the warrant sufficiently identified the person to be searched as the

appellant, Samantha Heard.



       Next, we address whether the affidavit sufficiently provides probable cause to

support the issuance of the search warrant. Probable cause has generally been

defined as a reasonable ground for suspicion, supported by circumstances

indicative of an illegal act. Tenn. Code Ann. § 40-6-104 (1997); State v. Stevens,

989 S.W.2d 290, 293 (Tenn. 1999); State v. Johnson, 854 S.W.2d 897, 899 (Tenn.

Crim. App. 1993). Probable cause to support the issuance of a 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. State v. Moon, 841 S.W.2d 336, 338 (Tenn. Crim.

App.1992); see also Tenn. Code Ann. § 40-6-104. Additionally, in reviewing

affidavits for probable cause, the appellate court should “look[] at and read [the

challenged affidavit] in a common sense and practical manner.” State v. Melson,

638 S.W.2d 342, 357 (Tenn. 1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770

(1983).



          Again, the appellant concedes that probable cause existed to support the

issuance of the search warrant of the premises at 1413A Lischey Avenue.


                                         6
However, she asserts that the affidavit makes no reference to the presence of a

black female on the premises at the time of the drug transaction and, therefore,

failed to provide sufficient probable cause to support the issuance of the warrant for

a search of her person.3 This fact alone is not dispositive in quashing a finding of

probable cause in the present case. We conclude that a warrant authorizing the

search of a specifically designated person at a specific location is valid if it is

supported by probable cause to believe that the person is likely to be involved in the

suspected criminal activity.



         In determining whether there is probable cause to believe that the person is

likely to be involved in the alleged criminal activity, the court should consider the

following circumstances:

         1. The physical characteristics of the premises to be searched;
         2. The nature of the criminal activity alleged;
         3. The physical characteristics of the items specifically described in
         the warrant; and
         4. The person’s connection to the property to be searched.

Cf. Sutton v. State, 738 A.2d 286, 293-295 (Md. App. 1999) (listing factors to

consider in determining the validity of an “all persons” warrant).4 After evaluating

these factors, the court must be able to find a sufficient nexus among the criminal

activity, the place of the activity, and the person in order to establish probable

cause. See People v. Johnson, 805 P.2d 1156, 1159 (Colo. App. 1990), cert.

denied, (Colo. 1991); see also State v. DeSimone, 288 A.2d 849 (N.J. 1972).


         3
          The appellant argues on appeal that notwithstanding the fact that the warrant for the
search of the premises was valid, any search of her person on the premises would have been
invalid. In support of this position, the appellant relies on Ybar ra v. Illin ois, 444 U.S . 85, 100 S .Ct.
338 (1979), holding that the Fourth Amendment will not be construed to permit searches of
persons who are on the premises subject to a search warrant but are not particularly named or
described in the warrant. The appellant’s reliance on Ybarra is misplaced in that the warrant
before this court s pecifically nam es the ap pellant as th e perso n to be se arched .

         4
         We acknowledge that the case law from various jurisdictions relied upon in this opinion
addresses the validity of “all persons warrants,” i.e., warrants which do not particularly identify the
person to be searched. While it is clear that Article I, § 7 of the Tennessee Constitution
denounces “‘general warrants’ permitting searches ‘without evidence of the fact committed’ and
personal seizures where ‘offences are not particularly described and supported by evidence,’” the
issue as to whether “all persons” warrants fall under the classification of “general warrants” has
not been specifically addressed by our supreme court. Again, this issue is non-present because
the warra nt before us identifies the pers on to be s earche d as op posed to an “all pers ons” wa rrant.
Nonetheless, we find the guidance provided in the case law on this issue beneficial to our
determination of probable cause in the case sub judice.

                                                     7
Indeed, there must exist good reason to suspect or believe that the person to be

searched at the premises will probably be a participant in the illegal activity. See

DeSimone, 288 A.2d at 849. See also 2 W. LAFAVE, SEARCH & SEIZURE, § 4.5(e) at

547-58 (1996). Thus, the dispositive question is whether there is sufficient

particularity in the probable cause sense, that is, whether the information supplied

by the affiant supports the conclusion that the person identified in the affidavit is

involved in the criminal activity in such a way as to have evidence thereof on his or

her person.



         In the present case, the appellant was identified as the lessee or occupant of

the residence to be searched. The place to be search was small, confined and

private; the access to which was presumably limited. There is no dispute that illegal

drug transactions occurred at the 1413A Lischey Avenue residence. The items to be

seized included cash money and illegal controlled substances; the type of items

which are of a size or kind which renders them easily and likely to be concealed on

the person. The appellant, as the listed resident of the premises, had a proprietary

interest in the residence and it is reasonable for officers to believe that the occupant

of the residence would be aware of the existence and location of any drugs on the

premises. In this respect, we acknowledge and adopt, as have other jurisdictions,

the legally recognized presumption that a person occupying a private premises is a

participant in the illegal activity when the alleged crime involves drug trafficking.5


         5
          See, e.g., State v. Lee A. Loins, Jr., No. 80,330 (Kan. App. Dec. 10, 1999)(all persons
warran t sufficient w hen affid avit includes inform ation that pla ce to be s earche d is private
residen ce and that drug u se and distribution o ccur at th e place); State v. Horn, 808 P.2d 438
(Kan. A pp.), cert. denied, (Kan. 19 91) (fac ts in affidavit m ust infer tha t the sole or prima ry activity
at the loca tion is the sa le of drugs ); Com mon wealth v. S mith , 348 N.E .2d 101( Mass .), cert.
denied, 429 U.S. 944, 97 S.Ct. 364 (1976) (search warrant for apartment and “any persons
present” was valid as informant’s information was that occupants were selling drugs and that
there wa s a regu lar traffic of p ersons entering to mak e purch ases); People v. Easterbrook, 324
N.E.2d 367 (N .Y. 1974), cert. denied, 421 U.S. 965, 95 S .Ct. 1 954 (197 5) (w here affid avit
supporting warrant alleged that heroin was used and sold in an apartment, criminal activity was of
such a nature and the premises so limited that it was likely everyone present was party to the
offense);Comm onwealth v. Graciani, 554 A.2d 560 (Pa. Super. 1989) (a sufficient nexus existed
between suspec ted distribution of cocaine, private residence and persons to be searche d to justify
warran t authorizing s earch o f all person s prese nt at reside nce); Comm onwealth v. Heidelberg,
535 A.2d 611 (Pa. Super. 1987) (warrant to search all persons present at defendant’s apartment
was supported by probable cause to believe that anyone at the residence on the night in question
would be involved in illega l drug-relate d activities); State v. Do yle, 918 P.2d 141 (U tah App .), cert.
denied, (Utah 1996) (holding all persons warrant valid if it is based upon pro bable cause to believe

                                                     8
Although there is no direct information in the affidavit that the appellant participated

in the illegal sale of the cocaine, we conclude that a sufficient nexus exits between

the criminal activity, the place of the activity, and the appellant to support the

issuance of the search warrant. Accordingly, this issue is without merit.



        The judgment of the trial court is affirmed.




                                         ____________________________________
                                         DAVID G. HAYES, Judge

CONCUR:



_______________________________________
JERRY L. SMITH, Judge


_______________________________________
NORMA MCGEE OGLE, Judge




that any person found at the location would be involved in narcotics trafficking);Morton v.
Com mon wealth , 434 S.E.2 d 890 (Va. A pp. 1 993 ) (info rm ation in a se arch warr ant a ffida vit
regarding drug use and distribution in apartment justified search of all persons present when
warran t was ex ecuted ); State v. Hayes, 540 N.W.2d 1 (Wis. App. 1995) (upholding the all persons
warrant because the affidavit included information of a recent sale of crack cocaine at the
apartment and the officer’s statement that, in his experience, it is common to find others at the
location who are involved in the drug transactions).

                                                 9
