         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                       SEPTEMBER 1999 SESSION
                                                  FILED
                                                   October 25, 1999

                                                Cecil Crowson, Jr.
STATE OF TENNESSEE,           )
                                               Appellate Court Clerk
                              )         NO. 02C01-9810-CC-00312
     Appellee,                )
                              )         HENRY COUNTY
VS.                           )
                              )         HON. JULIAN P. GUINN,
TINA M. YEOMANS               )         JUDGE
and DAVID McCLUSTER WADE, JR. )
                              )
     Appellants.              )         (Possession of Marijuana)



FOR THE APPELLANT:                      FOR THE APPELLEE:

VICTORIA L. DiBONAVENTURA               PAUL G. SUMMERS
104 West Washington Street, Ste. A      Attorney General and Reporter
Paris, TN 38242
                                        J. ROSS DYER
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        ROBERT "GUS" RADFORD
                                        District Attorney General

                                        STEVEN L. GARRETT
                                        Assistant District Attorney General
                                        P. O. Box 94
                                        Paris, TN 38242-0094




OPINION FILED:



AFFIRMED



JOE G. RILEY, JUDGE
                                        OPINION


        Defendants were convicted by a Henry County jury of simple possession of

marijuana. In this appeal as of right, defendants contend the search warrant

affidavit was insufficient to establish probable cause. After a review of the record,

we AFFIRM the judgment of the trial court.



                                            FACTS



        Timothy Hastings, the seventeen-year-old son of defendant Yeomans, left

a “state run half-way house” without permission.1 Valerie Hancock, twelve years of

age, ran away from her grandparents’ residence and accompanied Hastings to the

defendants’ residence2 in Paris, Tennessee, hoping to marry him. Hastings told his

mother he had been released from the half-way house, and Hancock advised

Yeomans she had a note from her grandparents authorizing her to stay two weeks

in Paris.



        The juveniles ran away from the defendants’ residence when defendant

Yeomans advised them that she would take Hancock back home the next day. On

November 6, 1997, the two juveniles “were found not in school and were taken to



        1
          There was no verbatim transcript of the proceedings available. Appellant’s counsel,
pursuant to Tenn. R. App. P. 24(c), filed a statement of the evidence. Counsel certified that
notice of filing was sent to the state. No objections were filed by the state. Although the trial
judge did not approve the statement, it is deemed approved when the trial judge takes no action
within 30 days after expiration of the period for filing objections. Tenn. R. App. P. 24(f). It
is the trial court clerk’s responsibility to send such statements to the trial judge. Id.

        Although not relevant to the disposition of this appeal, the parties have made reference
to facts not set forth in the statement of the evidence. The state has made reference to a
negative drug screen of the citizen informant. Although there was a reference to the drug
screen in an affidavit in the technical record, it does not appear in the statement of the evidence
and was not considered.

       Counsel and trial courts should be aware of the effect of failure to respond to an
appellant’s statement of the evidence.

        2
       Apparently, defendants were living together. Some pleadings indicate Yeomans as
“Tina M.Yeomans (Wade).”

                                               2
the juvenile court authorities.” The juvenile officer learned that Hastings had left the

half-way house without permission and that Hancock was listed as a “missing

person.”



       Hancock advised the juvenile officer that she knew where some marijuana

was located. Deputy Sheriff Scott Wyrick was summoned and informed by Hancock

that “marijuana could be found in a black pouch under the couch of the

defendants[’] home.” Based upon his conversation with Hancock, Deputy Wyrick

submitted the following affidavit in support of his request for a search warrant:

              On November 6, 1997, the affiant interviewed a 12-year-old
       juvenile whose name was Valerie Hancock. Hancock told the affiant
       that she had been staying at Tina Yeomans’ residence in Henry
       County, Tennessee. Hancock had witnessed Tina Yeomans smoking
       marijuana inside the residence as late as 11-5-97. Hancock had seen
       Yeomans using and storing marijuana throughout Yeomans’
       residence.


             Hancock does know what marijuana looks like and smells like
       from being around it before.

            Juvenile Officer Kelly Pinson witnessed the interview between
       Hancock and the affiant.

            Based on Hancock’s information, the affiant does believe that
       Yeomans has marijuana in her residence.

            Hancock gives this information willingly and asks for no
       payment for the information.



The affidavit was executed on November 6, 1997, and the search warrant was

issued by the magistrate on the same date.



       A search of defendants’ home revealed “a black pouch under the couch

containing a green leafy plant material which later tested to be marijuana.”

Marijuana was also found in the master bedroom.




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                         DEFENDANTS’ CONTENTIONS



       Defendants contend the search warrant affidavit was faulty. Specifically, they

aver the affidavit was insufficient for the magistrate to consider Hancock a “citizen

informant,” and her credibility was not sufficiently established. Defendants also

contend the affidavit omits material information concerning Hancock’s status which

was essential to the magistrate’s determination of reliability. We disagree with

defendants’ contentions.



                              INFORMANT’S STATUS



       Information provided by an ordinary citizen is presumed to be reliable, and

the affidavit need not establish that the source is credible or that the information is

reliable. State v. Melson, 638 S.W.2d 342, 354-56 (Tenn. 1982), cert. denied, 459

U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983). On the other hand, if the source

is a criminal informant, reliability must be determined by the two-pronged Aguilar-

Spinelli test, as adopted by the Tennessee Supreme Court in State v. Jacumin, 778

S.W.2d 430, 436 (Tenn. 1989). Under this test, the affidavit must include “(1) the

basis for the informant’s knowledge, and either (2)(a) a basis establishing the

informant’s credibility or (2)(b) a basis establishing that the informant’s information

is reliable.” State v. Cauley, 863 S.W.2d 411, 417 (Tenn. 1993)(quoting State v.

Ballard, 836 S.W.2d 560, 562 (Tenn. 1992)).



       In order for the informant to be considered a citizen informant, the affidavit

should contain more than conclusionary allegations that the informant was a

“concerned citizen source,” “acted on civic duty,” and “asked for no payment for

their information.” State v. Stevens, 989 S.W.2d 290, 294 (Tenn. 1999). Generally,

a more particularized showing of the law-abiding nature of the person supplying the

information is needed. Id. at 295. The reliability of the informant, as well as the

information furnished, must be judged from all the circumstances and from the


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entirety of the affidavit. Cauley, 863 S.W.2d at 417. A finding of probable cause

by the issuing magistrate is entitled to great deference. Melson, 638 S.W.2d at 357.



       We confine our examination to the affidavit itself. The affidavit specifically

names the informant, giving her age. The reason for her presence in defendants’

residence was set forth; namely, she had been staying at the residence. The

informant had personally witnessed the smoking of marijuana the day before the

affidavit’s swearing, and had seen it stored. Further, the juvenile stated that she

was familiar with the appearance and smell of marijuana. Unfortunately, it is not

unreasonable to conclude that a twelve-year-old would be familiar with marijuana.

Although certainly not conclusive, the affidavit further states that the informant did

not seek payment for the information. Even though the age of the informant is

certainly relevant, the mere fact that the citizen was a juvenile, age 12, does not

preclude a finding of reliability. See Easton v. City of Boulder, 776 F.2d 1441, 1450

(10th Cir. 1985)(permissible to rely upon statements of five-year-old and three-year-

old children in issuing arrest warrant). In fact, a finding of probable cause may rest

upon evidence which is not legally competent in a criminal trial. United States v.

Ventresca, 380 U.S. 102, 107, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).



       The information set forth in the affidavit is sufficient to establish the juvenile

as a “citizen informant” and not a “typical criminal informant or tipster,” or an

informant from the “criminal milieu.” Melson, 638 S.W.2d at 354. Accordingly, the

information provided by the juvenile was credible and provided sufficient probable

cause for the issuance of the search warrant.



       This issue is without merit.




                                           5
                     OMISSION OF INFORMANT’S STATUS



       Defendant next contends the officer misrepresented material facts by failing

to include that the informant was unknown to the affiant, was a missing person, had

come to Henry County to marry another juvenile, and was in the presence of

juvenile authorities when she provided this information. We conclude that the

omission of these facts does not affect the validity of the search warrant.



       An affidavit, sufficient on its face, may be impeached only by showing “(1) a

false statement made with intent to deceive the Court, whether material or

immaterial to the issue of probable cause,” or “(2) a false statement, essential to the

establishment of probable cause, recklessly made.” State v. Little, 560 S.W.2d 403,

407 (Tenn. 1978); see also Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct.

2674, 57 L.Ed.2d 667,672 (1978). A facially valid search warrant may only come

under attack when the defense establishes that the search warrant was procured

by officers through perjury or coercion. State v. Cannon, 634 S.W.2d 648, 650

(Tenn. Crim. App. 1982). Allegations of negligence or innocent mistakes are

insufficient to invalidate the search warrant. Franks, 438 U.S. at 171. In order to

be entitled to relief, a defendant must show that the reckless statements were

necessary to the finding of probable cause. Id. at 155-56; see also State v. Smith,

867 S.W.2d 343, 350 (Tenn. Crim. App. 1993). The burden is on the defendant to

establish the allegation of perjury or reckless disregard by a preponderance of the

evidence. See Franks, 438 U.S. at 156.



       Clearly, the defendants do not fall within purview of Little in that the affidavit

did not contain a “false statement.” Little, 560 S.W.2d at 407. Instead, defendants

argue that the “omission” of material facts invalidates the search warrant. Although

Franks and Little concerned only “false statements,” many courts have recognized

that the same rationale should extend to material omissions in an affidavit. See 2

LaFave, Search and Seizure § 4.4(b) (3d ed. 1996)(citations omitted). However, an


                                           6
affidavit omitting potentially exculpatory information is less likely to present a

question of impermissible official conduct than one which affirmatively includes false

information. United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997).




       We conclude the omission of facts relating to the informant’s status in this

case does not invalidate the warrant. We first note that the statement of the

evidence contains nothing to indicate that the officer intentionally withheld what he

considered to be material information. Although we agree that an informant’s

status, i.e. the facts and circumstances surrounding the giving of information, is

generally relevant to the issue of credibility, a disclosure of this informant’s status

would still not reflect that the twelve-year-old was from the criminal milieu; nor would

it negate the probable cause justifying the issuance of the search warrant. Other

cases have held that the omission of information concerning the informant’s status

was not fatal to the search warrant. See United States v. LaMorie, 100 F.3d 547

(8th Cir. 1996)(omission that informant was a convicted felon not fatal); State v.

Lease, 196 W.Va. 318, 472 S.E.2d 59 (1996)(omission that informant was under

arrest for public intoxication and marijuana possession and in state of extreme

agitation at time of statement not fatal).



       Thus, we conclude that even if the omitted information had been included in

the affidavit, probable cause still existed for the issuance of the warrant.

Accordingly, this issue is without merit.



                                   CONCLUSION



       Based upon our careful review of the record, we AFFIRM the judgment of

the trial court.




                                             7
                                   ____________________________
                                   JOE G. RILEY, JUDGE




CONCUR:


____________________________
DAVID G. HAYES, JUDGE



____________________________
THOMAS T. WOODALL, JUDGE




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