     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE                                FILED
                                                                     November 10, 1999
                      MAY 1999 SESSION
                                                                     Cecil Crowson, Jr.
                                                                    Appellate Court Clerk



WILLIAM J. LOGAN,                 )
                                  )   C.C.A. No. 03C01-9808-CR-00287
       Appellant,                 )
                                  )   Hawkins County
v.                                )
                                  )   Honorable Ben K. Wexler, Judge
STATE OF TENNESSEE,               )
                                  )   (Post-Conviction)
       Appellee.                  )




FOR THE APPELLANT:                    FOR THE APPELLEE:

GREG W. EICHELMAN                     PAUL G. SUMMERS
District Public Defender              Attorney General & Reporter

R. RUSSELL MATTOCKS                   TODD R. KELLEY
Assistant Public Defender             Assistant Attorney General
1609 College Park Drive, Box 11       425 Fifth Avenue North
Morristown, TN 37813                  Nashville, TN 37243-0493

                                      C. BERKELEY BELL, JR.
                                      District Attorney General
                                      109 South Main Street, Suite 501
                                      Greeneville, TN 37743

                                      JOHN DOUGLAS GODBEE
                                      Assistant District Attorney General
                                      100 East Main Street, Suite 201
                                      Rogersville, TN 37857




OPINION FILED: ________________________________________


AFFIRMED


ALAN E. GLENN, JUDGE
                                          OPINION


          The petitioner, William J. Logan, appeals the dismissal of his petition for post-

conviction relief by the Hawkins County Criminal Court. As grounds for relief, the petitioner
claims several instances of alleged ineffective assistance of counsel and the alleged failure

of the trial judge to state findings of fact and conclusions of law. Based upon our review

of the record and of applicable law, we affirm the order of the trial court dismissing the
petition.



          Although the petitioner, in his pro se petition for post-conviction relief, set out a
number of grounds which he alleged entitled him to post-conviction relief, his appellate

counsel presented four issues for review.1

                 1.   Trial counsel was ineffective in failing to object to the
                      introduction of certain evidence which was obtained
                      as the result of an illegal search and seizure.

                 2.   Trial counsel was ineffective in failing to object, upon
                      the request of the petitioner, to the introduction during
                      the trial of a videotape made during the execution of
                      a search warrant at the petitioner’s residence.

                 3.   Trial counsel was ineffective in failing to timely
                      challenge whether the search warrant could be based
                      upon certain information allegedly received from a
                      confidential informant.

                 4.   The trial court failed to state findings of fact and
                      conclusions of law.



          Appellate counsel for the petitioner states in his brief that the petitioner is now
pursuing only these four issues, and not the additional six issues set out in his petition for

post-conviction relief. Accordingly, these additional claims are waived. Tenn. R. Ct. Crim.

App. 10(b).

                                               FACTS

          The process resulting in the prosecution of the petitioner began when Detective Dan
Quillen of the Kingsport Police Department went before a General Sessions judge in

Hawkins County2 and obtained a search warrant which stated the following:

STATE OF TENNESSEE, HAWKINS COUNTYAFFIDAVIT AND SEARCH WARRANT

                 I Detective David P. Quillen, make oath that I am a Police


  1
      The petitioner’s conviction was affirmed in State v. Logan, 973 S.W.2d 279 (Tenn. Crim. App.),
perm. app. dismissed (Tenn. 1998).
      2
   The city of Kingsport is situated mostly in Sullivan County, but a portion of its city limits is in
Hawkins County.

                                                  2
            Officer duly appointed and qualified as such in the state and
            county aforesaid; that on the 8 day of April, pursuant to a
            criminal investigation I received information that the crime of
            cocaine possession and cocaine selling is or has been
            committed in Hawkins County, Tennessee, and that William
            James Logan is now in possession or control of fruits or
            instruments of the crime set forth above; said property or
            residence being described as follows: 941 Old Stage Road,
            Church Hill, Tn. Westbound on Main Street make a right turn
            onto Carolyn Ave. and the next right onto Old Stage Road.
            Travel approximately 3/10 of a mile on Old Stage Road. The
            residence to be searched will be on the left. It will be a single
            story structure with a red tin roof, light color siding with white
            trim and a front porch. There is a storage building in the back
            yard. Search to include Mr. Logan, vehicles and curtilage
            located in Hawkins County Tennessee.

            I further make oath that my reasons for believing said William
            James Logan is unlawfully keeping or controlling said cocaine,
            drug paraphernalia is set forth in the following affidavit: Within
            the past 72 hours, a reliable confidential informant has been at
            the above described premises and told the affiant that the
            individual named is engaged in dealing in narcotics. The
            confidential informant is familiar with cocaine, how it is
            processed, packaged for resale and how it is administered for
            personal use.
            Within the past 72 hours, the confidential informant told the
            affiant that same observed cocaine being sold and stored
            therein. In the past the confidential informant has given the
            affiant information on at least one occasion that led to the
            seizure of cocaine. The confidential informant has
            corroborated other reliable informant’s information and has
            never given information that I found to be untrue.

             Wherefore, as such officer acting in performance of my duty in
             the premises I pray that the Court issue a warrant authorizing
             the search of the person of the said William James Logan and
             the premises herein described for said cocaine, drug
             paraphernalia described above, and that such search be made
             either by day or night.

                                          David P. Quillen
                                          Affiant



      Following the presentation of the affidavit, the Hawkins County General Sessions
Court issued the following search warrant:

                             SEARCH WARRANT
                   STATE OF TENNESSEE, HAWKINS COUNTY

            To the Sheriff or any lawful officer of said county;

            Proof having been made before me and reduced to writing and
            sworn to by Detective David P. Quillen whose affidavit is
            attached hereto and is hereby referred to for its contents, and
            said contents incorporated herein, that there is probable cause
            to believe that the crime of cocaine possession, has or is being
            committed in Hawkins County, Tennessee, and that said
            William James Logan now has in his possession or under his
            control the said cocaine, drug paraphernalia, that said
            premises or property is located in Hawkins County,
            Tennessee, and are hereby referred to by specific reference to
            the attached affidavit for this warrant.

            From the proof it is adjudged that the offense of cocaine
            possession or or [sic] has been committed by the said

                                             3
              defendant, William James Logan, on the said premises
              hereinbefore described, and you are hereby commanded in the
              name of the State of Tennessee to make immediate search by
              day or night, of the person of said defendant, and the house or
              buildings on said premises, and should you find the same or
              any part of the said cocaine, drug paraphernalia, bring the
              same before the Court of General Sessions and make a due
              return of this writ.
              Given under my hand and seal this 10 day of April, 1996.

                                               /s/
                                     Judge of the Court of General Sessions



       The return on the search warrant was made by Detective Quillen on April 12, 1996,
and states that the following personal property was seized: “Several baggies cocaine,”

“Approx. 2,824.00 in cash,” ”shoe - pager,” and “Prescription bottle - I off white pill.”



       According to the Kingsport Police Department Vice and Narcotics Division raid

worksheet, the raid coordinator for the execution of the search warrant was D. P. Quillen,

the raid supervisor was Sergeant Wayne Anderson, and the authorization for the raid was
granted by “MEA/303.” This worksheet further sets out that the security team consisted

of a Hawkins County or Church Hill officer and Tim Crawford, that the search team

consisted of Sergeant Wayne Anderson and D. P. Quillen, and the arrest team consisted

of Tim Crawford and a Hawkins County or Church Hill officer. The evidence custodian and

videographer was D. Street.



                                EVIDENTIARY HEARING

       On August 5, 1998, the trial court held a hearing on the petitioner’s petition for post-

conviction relief. Detective David Quillen, the first witness testified that he had been
employed for seven years by the Kingsport Police Department. Based upon information
which he had obtained from an informant within the city limits of Kingsport, he sought and

obtained the search warrant for the residence of the petitioner. Detective Quillen testified

that he was a duly appointed and qualified officer of Hawkins County by virtue of the fact
that Kingsport extends into Hawkins County and his authority extended one mile into

Hawkins County. However, his authority did not extend to the area in which the petitioner’s

residence was located, approximately six miles from the Hawkins-Sullivan County line.



       Counsel, whose performance is now being questioned by the petitioner, also

testified at the hearing. He testified that, in addition to Detective Quillen, others present for

the execution of the search warrant at the petitioner’s residence were Dustin Dean, of the

                                               4
Church Hill Police Department and Corporal Phelps, of the Mount Carmel Police

Department.

                                       DISCUSSION

       We will review seriatim the issues presented in the petitioner’s appellate brief,

analyzing each both as to the efficacy of the claim and then as to whether the alleged

inaction of trial counsel as to that particular claim is affected by the holding of our Supreme

Court in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975).



              1.   Alleged ineffective assistance of counsel as the result
                   of the failure of trial counsel to challenge the search
                   warrant because it was obtained by a Kingsport police
                   officer for a residence in Hawkins County more than
                   one mile from the portion of Kingsport within Hawkins
                   County.

       Regarding the petitioner’s allegations as to his trial counsel’s incompetency in not

challenging the search warrant for the petitioner’s residence, we view the issue as follows:

To what extent, if any, is the efficacy of a search warrant affected when the affiant is a law

enforcement officer with jurisdiction over a portion of a county, although not that portion in

which the location to be search is located, the search warrant is directed not to the affiant,

but to the sheriff or any law enforcement officer of the county where the search is to take

place, and the affiant is accompanied, during the execution of the search warrant, by

officers with jurisdiction in that county, one of whom is an officer in the city in which the
place to be searched is located.


       Regarding this claim, the trial court found, in dismissing it:
              The search warrant, the search warrant was obtained by
              officers of Sullivan County, or Kingsport, and which a Hawkins
              County Session Judge granted the warrant. It appears from Mr.
              Winstead’s testimony that two local police officers of Hawkins
              County went and served this warrant, or was at least present
              when the warrant was served. And I can’t really, I haven’t been
              able to find anything that was wrong with this search warrant.
              If there is, I’ve not been shown it here this morning.


       Rule 41, Tennessee Rules of Criminal Procedure, provides, in pertinent part, as

follows:

              Search and Seizure.

              (a) Authority to Issue Warrant. - A search warrant
                  authorized by this rule may be issued by a magistrate
                  with jurisdiction within the county wherein the property
                  sought is located, upon request of the district attorney
                  general or assistant or criminal investigator, or any
                  other law enforcement officer.
              ....

                                              5
              (c) Issuance; Contents; Copies; Failure to Comply. . . .
                  The search warrant shall be directed to and served by
                  the sheriff or any deputy sheriff of the county wherein
                  issued, any constable, or any other peace officer with
                  authority in the county.


       We note that Detective Quillen was a duly authorized law enforcement officer in

Sullivan County, where Kingsport is located, as well as in a portion of Hawkins County,
although not the portion where the petitioner’s residence was located. Further, we note

that the search warrant itself is directed not to the affiant, Detective Quillen, but “[t]o the

Sheriff or any lawful officer of said county.”


       In State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993), reh’g denied, 1994 WL 3381,

cert. denied, 513 U.S. 960, 115 S.Ct. 417, 130 L.Ed.2d 333 (1994), our Supreme Court
considered a similar complaint to that of the petitioner herein regarding a search warrant

in that it had been obtained by a police officer with jurisdiction in a contiguous county:

                   The Defendant’s concluding argument is that the search
              warrant was invalidated because Detective Pridemore of the
              Metropolitan Nashville Police Department had no authority to
              execute the warrant in Robertson County. T.R.Cr.P. 41(c)
              requires that a search warrant be “directed to and served by
              the sheriff or any deputy sheriff of the county wherein issued,
              any constable, or any other peace officer with authority in the
              county.” When the warrant was obtained and executed,
              Detective Pridemore was accompanied by Deputy Groves of
              the Robertson County Sheriff’s Department. The warrant itself
              is addressed “to any Peace Officer within or of said County
              [Robertson County].” The Judicial Commissioner certified that
              the warrant was delivered for execution to Pridemore;
              however, Groves executed the return on the warrant.
              Pridemore’s participation in procuring the warrant and
              executing it does not invalidate the warrant. See State v.
              Pigford, 572 S.W.2d 921 (Tenn. 1978) (issuance of warrant to
              federal officer and his participation in its execution did not
              invalidate warrant so long as it met all statutory requirements);
              State v. Robinson, 622 S.W.2d 62, 75 (Tenn. Crim. App.
              1981). We are of the opinion that the trial court correctly held
              that the search warrant was validly executed.

Smith, 868 S.W.2d at 572-73.



       In the instant matter, as in Smith, although the search warrant was issued to an

officer from a contiguous jurisdiction, he was accompanied for its execution by officers from

the county where the property subject to the search warrant was executed. Other

Tennessee decisions also have considered whether the validity of a search warrant is
affected by the fact that it was not obtained by a police officer from that jurisdiction. In

State v. Pigford, 572 S.W.2d 921 (Tenn. 1978), our Supreme Court considered the

situation in which an agent of the Federal Drug Enforcement Administration appeared

before a Shelby County General Sessions judge and executed a search warrant affidavit

                                                 6
to obtain a warrant for the search of the defendant’s premises. The warrant was addressed

“[t]o the Sheriff, Any Constable or Any Peace Officer of [Shelby] County.” Pigford, 572

S.W.2d at 921. When obtaining the search warrant, the federal officer was accompanied
by a Shelby County deputy sheriff, and he was accompanied by the same Shelby County

deputy sheriff and two others when the search warrant was executed. The deputy sheriff

who was present when the warrant was obtained made the return on the warrant. In
upholding the search warrant, the Court said:

              All such statutory requirements were met by the warrant in this
              case and by its execution. It was directed “to the sheriff, any
              constable, or any peace officer” of Shelby County and
              commanded them to execute a search of respondent’s
              premises. It did not direct or command Griggs [the DEA agent]
              to perform the search nor did Griggs alone execute the
              warrant. Deputy Hamby was present when application was
              made for the warrant; and he and two other county deputies,
              assisted by Griggs, searched the premises. Griggs’
              participation in the search in no way invalidates the warrant or
              the search so long as the provisions of § 40-508 are complied
              with.
Pigford, 572 S.W.2d at 922.



       Other jurisdictions have considered complaints similar to those raised by the

petitioner.



       In United States v. Freeman, 897 F.2d 346 (8th Cir. 1990), a special agent for the

Missouri Department of Revenue had obtained a search warrant for a salvage yard in

Missouri. Since, under Missouri law, only a “peace officer or prosecuting attorney” could
apply for the issuance of a search warrant, the owner of the salvage yard moved to quash

the search, arguing correctly that the revenue employee was not authorized to seek a

search warrant. The court noted the holding as to a similar question in the seminal case
of United States v. Burke, 517 F.2d 377, 386-87 (2d Cir. 1975), wherein Judge Friendly

wrote, regarding an attack upon a search warrant:

              . . . . violations of Rule 41 alone should not lead to exclusion
              unless (1) there was “prejudice” in the sense that the search
              might not have occurred or would not have been so abrasive
              if the Rule had been followed, or (2) there is evidence of
              intentional and deliberate disregard of a provision in the Rule.

Freeman, 897 F.2d at 349.



       In Freeman, the court upheld the warrant, ruling that:

              The instant case is a close case. The circumstances relating
              to Ley’s violation of the procedures for application and
              execution of the warrant are more egregious than in any of the
              cases previously cited because here Ley did not consult with
              anyone in authority before applying for the warrant. Further,

                                             7
              evidence in the record supports a conclusion that Ley himself
              controlled and supervised the search and made the return,
              although joined in that search by qualified peace officers.

              Nevertheless, we conclude that these concerns were minimally
              overcome here. As noted, the magistrate found that Ley,
              although unauthorized to apply for and execute a search
              warrant, carried out the application and execution in good faith,
              believing that he possessed authority to do so. This finding is
              not clearly erroneous.

              Moreover, the record as a whole demonstrates that no constitutional
              violation occurred: the affidavit supporting the search warrant
              provided probable cause to search and the search warrant described
              with particularity the place to be searched and the items to be seized.
              Additionally, Freeman suffered no prejudice in the sense that the
              search might not have occurred or been so abrasive had the
              procedural requirements been followed. Accordingly, we cannot say
              the district court erred in denying the suppression motion.

Freeman, 897 F.2d at 350 (citations omitted).



       We note that the petitioner claims that Detective Quillen misrepresented his

authority, but there is no allegation that the search would not have occurred or would have

been conducted differently had he not been involved.


       Courts of other states have upheld warrants in spite of complaints similar to that of

this petitioner. In Keen v. State, 626 S.W.2d 309 (Tex. Crim. App. 1981), an Austin,

Texas, police officer had obtained a search warrant for a residence which, although located

in the same county as Austin, was not within its city limits. Thus, under Texas law, the
officer did not have jurisdiction where the residence was located. Noting that the Austin

police officer was assisted in execution of the search warrant by other officers with county-

wide jurisdiction, the court upheld the validity of the search warrant. See also Dickey v.

State, 815 S.W.2d 832 (Tex. App.-Eastland 1991) (citing Keen, search warrant valid

though issued to Houston police officer for search in adjacent Galveston County when the

officer was accompanied by a Galveston police officer whose name was also listed on the
return); Chavez v. State, 970 S.W.2d 679 (Tex. App.-Eastland 1998).



       Likewise, in People v. Martinez, 898 P.2d 28 (Colo. 1995), Denver police officers

had executed a search warrant at a certain address in what they believed to be the City of
Denver, determining later, however, that the location was actually in the City of Englewood,

Arapahoe County, Colorado, and was approximately one block from the Denver city limits.

Arapahoe County officers were unaware until later that the warrant had been obtained or
executed. The court upheld the search nonetheless, finding that “there is no evidence that

the house would not have been searched, or that the search would have been carried out


                                             8
in a substantially different manner if local officers were present.” Martinez, 898 P.2d at 33.



       Based upon these authorities, we believe that the search warrant was not subject
to being suppressed simply because it was obtained by Detective Quillen, who was not an

officer with jurisdiction as to the portion of Hawkins County where petitioner’s house was

located. Rule 41(a), Tenn. R. Crim. P., allows a search warrant to be requested by “the
district attorney general or assistant or criminal investigator, or any other law-enforcement

officer.” This language does not require that the request for the search warrant must be

made by a law enforcement officer of the county where the search is to be conducted, only
that the person be a law enforcement officer. In fact, in both State v. Pigford, 572 S.W.2d

921 (Tenn. 1978) (wherein DEA officer requested the warrant), and State v. Smith, 868

S.W.2d 561 (Tenn. 1993) (Nashville police officer requested the search warrant in
Robertson County), search warrants were sought by law enforcement officers not having

jurisdiction in the county wherein the warrants were issued. Although in both of those

cases officers from the issuing counties were present when the warrants were issued, we
do not consider this to be the determinative factor in either of the cases. Rule 41(c), Tenn.

R. Crim. P., specifically provides that a search warrant is to be “directed to and served by

the sheriff or any deputy sheriff of the county wherein issued, any constable, or any other

peace officer with authority in the county.” Although Detective Quillen had authority in

Hawkins County, it was limited to a small area and did not include the location of the
petitioner’s residence. However, the trial court found that two Hawkins County law

enforcement officers either served the search warrant or were present when it was served.3

Thus, pursuant to the holdings in Pigford and Smith, we concur with the trial court that the

search warrant was not invalid because of the involvement of Detective Quillen.4 This

being the case, trial counsel was not ineffective for not contesting the search warrant on

this basis.


               2.   Trial counsel was ineffective for failing to object to the
                    introduction of a videotape at the trial.

       During the evidentiary hearing in this matter, Detective Quillen testified regarding

this videotape:



  3
   Detective Quillen testified during the evidentiary hearing that the search team would not have
gone to the petitioner’s house or executed the search warrant if the Church Hill officer had not been
present.
  4
   Further, as we have previously noted, there is no allegation, nor any proof, suggesting that the
search warrant would not have been obtained or the search conducted differently had the search
warrant been obtained by a Hawkins County police officer.

                                                 9
               Q. The video that has been referred to, this was as I
                  understand it, introduced into evidence, is merely a
                  video tape of the inside of the house?

               A. Yes, sir.


       Regarding this same matter, the petitioner testified during the evidentiary hearing:

               Q. The video tape was introduced at your trial.
               A. Yes.

               Q. Would you describe for the Court what the video tape
                  showed?

               A. Mr. Winstead failed to suppress this evidence in the
                  video tape. The video tape showed my watch, rings in
                  the window sill. They zoomed in on them. Jewelry, my
                  living room outfit, furniture, appliances, to show how
                  I lived. I guess they was showing that I lived pretty
                  decent to be with the income that I was getting; but
                  everything in my house was paid for by payments. I
                  don’t think he should have used that evidence to
                  prove intent. I was charged with Possession with the
                  Intent to Sale [sic] .11 gram of cocaine. And the video
                  tape didn’t show intent, it didn’t show transactions; it
                  didn’t show any crime whatsoever. It just showed the
                  condition of my house. They even filmed the tires on
                  my car to show how good the car looked, and you
                  know, it inflamed the jury; and I think it created an
                  unfair outcome of my trial. 5
               Q. Did you ask Mr. Winstead, at the time of the trial, to
                  object to the introduction of this evidence?

               A. Mr. Winstead never showed me the tape until I got to
                  trial. And I asked him, I said, what’s on that tape? He
                  said, don’t worry about it; I already saw it. It ain’t
                  going to hurt you. And I didn’t know what was on it
                  until he put it on there. I didn’t even know they did it.
                  They didn’t do it while I was there. I got arrested and
                  was gone. And they must have come back and video
                  taped it.
               Q. If Mr. Winstead had discussed this evidence with you,
                  prior to the trial, would you have asked for him to
                  object?

               A. Yes, sir.


       The following additional comments were made regarding this videotape:

               THE COURT: Actually, this video, was it just a video of the
               alleged crime scene?

               MR. MATTOCKS: Yes, sir. The Petitioner’s apartment, his
               car, his apartment.

               PETITIONER LOGAN: Nothing showed the crime whatsoever.

               ....

  5
    The videotape was not made an exhibit to the hearing on the petition for post-conviction relief.
However, for the purposes of this appeal, we will presume that the petitioner accurately described
its contents.

                                                10
               Q (by General Godbee): Okay, and they were showing
               everything that was there, weren’t they?
               A (by petitioner): No, not any money or drugs or anything like
               that. They was just showing appliances, furniture, that’s all.

      The petitioner’s trial counsel also testified regarding the videotape:
               Q. And the video tape, and do you remember what if
                  anything was video taped?
               A. Yes, I’ve reviewed not only the preliminary hearing,
                  but the transcript. And my independent recollection of
                  it was that the video tape - they took, when they
                  brought the dog into - he found - he hit on three items
                  in the house, the Reebok tennis shoes that had
                  $2,000.00 in it. There was [a] vase sitting on the
                  table, as I remember was $94.00, and there was
                  money found in the third place in the house, about
                  $300.00. The total was $2835.00, which was seized.
                  The officers took eight or nine photographs of that,
                  including the commode, where they alleged that Mr.
                  Logan was sitting at the time. That’s where the 16
                  baggies were found. But you recall when this
                  evidence was sent . . . .
                   ....

                   Q (by Mr. Mattocks): With regard to the video tape,
                   did you file a motion to suppress the video tape?

                   A. I did not.

                   Q. Did you show the video tape or discuss the video
                   tape with Mr. Logan prior to trial?

                   A. I obtained copies of the photographs, the nine
                   photographs, and yes, I told him there was a video
                   tape. It was simply showing the location of everything
                   in the house, particularly the three places that the
                   money was found in the house and the location of the
                   bathroom and commode where that he was sitting
                   when the officers came into the house when they took
                   him off the commode.
                   Q. Did Mr. Logan ask for you to object to the video
                   tape?
                   A. No, sir, he did not. We discussed it. He’s correct.
                   I told him I did not see that the video tape was going
                   to add or detract from anything as far as our defense
                   was. That it was possessed no intent to sale. He had
                   made a statement to the officers that he knew that it
                   was cocaine, and that it was his cocaine, and that he
                   was addicted; and that it was only for his use. That’s
                   all the statement that was made to my understanding
                   from him and the officers that it was made while he
                   was in the house, without an interrogation being
                   conducted.



       Regarding the petitioner’s complaints about the showing of the videotape, the trial

court ruled:

               The video tape, Mr. Winstead said he had looked at the tape,
               couldn’t find anything in there that would help or hurt him, and
               of course, the State has a right to show pictures of the crime

                                             11
              scene. I feel sure that the trial Judge would have allowed that,
              unless there was something in there that was more prejudicial
              than showing a car with new tires on it, or a new refrigerator,
              or a watch laying in the window. That allegation is dismissed.



       Pursuant to the holding in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), trial

counsel is not ineffective when counsel does not object to the introduction during trial of

certain evidence, simply because the client insists that such an objection be made, but

there is no legal basis for such an objection.


       Unless a showing can be made that trial counsel did not satisfy the Baxter standard,

in that counsel’s services were not within the range expected of attorneys in criminal
matters and that, but for the deficient performance, the trial results would have been

different, post-conviction relief for ineffective assistance of counsel is not available.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).



       In this case, both this Court, as well as the trial court, were handicapped in

assessing the petitioner’s claims regarding the videotape, since the tape apparently has

been lost. However, based upon the descriptions in the record of its contents, it appears

to be somewhere between innocuous and immaterial to the proof. This being the case,

counsel was not ineffective in not objecting to the tape being introduced into evidence. For

these reasons, we cannot say that the trial court was incorrect in overruling the complaint

regarding the videotape.


              3.   Alleged ineffective assistance of counsel in that trial
                   counsel failed to challenge in a timely manner the
                   information from an unidentified confidential informant
                   which was used as a basis of the search warrant.

       Regarding the probable cause for the issuance of the search warrant, the affidavit
for the search of the petitioner’s residence stated:

              Within the past 72 hours, a reliable informant has been at the
              above described premises and told the affiant that the
              individual named is engaged in dealing in narcotics. The
              confidential informant is familiar with cocaine, how it is
              processed, packaged for resale and how it is administered for
              personal use.

              Within the past 72 hours, the confidential informant told the
              affiant that same observed cocaine being sold and stored
              therein. In the past the confidential informant has given the
              affiant information on at least one occasion that led to the
              seizure of cocaine. The confidential informant has
              corroborated otherwise reliable informant’s information and
              has never given information that I found to be untrue.



                                             12
       The petitioner argues that deficiencies in the search warrant affidavit regarding the

confidential informant and information received from that person should have been

challenged by trial counsel with a motion to suppress the search warrant. The defense
argues that such a motion would have resulted in a hearing during which the prosecution

would have been forced to produce the confidential informant as a witness.



       Regarding the petitioner’s allegations that this information was insufficient for the

issuance of a search warrant, the trial court ruled:

              The confidential informant, it says that he didn’t give enough
              information on the warrant. It looked like he did. I couldn’t
              understand what we are talking about, if he didn’t give enough
              information. I believe that the information was that he was
              present in Mr. Logan’s residence some few hours before this
              search warrant was sought, and observed a sale. That looks
              to me like pretty good confidential information. I feel sort of like
              Mr. Winstead, if I had been representing this man, I don’t think
              I would have wanted that fellow to testify, regardless of who he
              was.     Now whether he was reliable, I guess reliable
              information, I believe it says in that affidavit that he had given
              reliable information once before. And to make information
              reliable, maybe you have to give it several time’s [sic]; but
              you’ve got to start somewhere. And if it’s the second situation,
              and the first situation worked out and was reliable, and
              apparently it was reliable in this case. So I don’t see anything
              wrong with the search warrant. That allegation is dismissed.



       Whether the credibility of an informant has been sufficiently established has

spawned much litigation. As noted in Moylan, “Hearsay and Probable Cause: An Aguilar
and Spinelli Primer,” 25 Mercer L. Rev. 741, 765 (1974):

              The character of the informant as a truth-speaker could
              hypothetically be established in a number of ways. A lie
              detector test or truth serum would certainly have a bearing on
              the question. If the informant was once awarded a Boy Scout
              medal for trustworthiness or if he happened to be a prince of
              the church, those facts would be unquestionably relevant on
              the issue. Testimonials from friends, neighbors, and business
              associates as to his reputation for “truth and veracity” would be
              highly relevant. As a practical matter, however, “stool pigeons”
              are neither Boy Scouts, princes of the church, nor recipients of
              testimonials. With the typical confidential police informant, we
              have recourse only to his “track record” of past performances.


       In State v. Valentine, 911 S.W.2d 328 (Tenn. 1995), our Supreme Court set out the

principles which we must apply in testing the search warrant affidavit:

              In order for a search warrant to meet constitutional
              requirements under Article I, Section 7, of the Tennessee
              Constitution, the warrant must comply with the two-pronged
              standard voiced in Aguilar v. Texas and Spinelli v. United
              States. State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989). The
              two prongs of the Aguilar-Spinelli test are usually referred to as
              the “basis of knowledge” prong and the “veracity” prong.

Valentine, 911 S.W.2d at 330 (footnotes omitted).

                                              13
       Over the years, our courts have considered numerous variations of information from

confidential informants which was the basis for a search warrant . In State v. Stevens, 989
S.W.2d 290, 292 (Tenn. 1999), law enforcement officers, utilizing a person whom they felt

was a “citizen informant,” set out in the search warrant affidavit that the informant was

“believed to be credible and liable [sic].” The court, finding that the informant was not a
“citizen-informant,” as the officers believed, upheld the search warrant because of

verification by the officers of the information:

              With regard to the reliability of the informant, the affidavit
              states only that the “citizen” was “believed to be credible and
              [re]liable.” Although this assertion alone is insufficient to
              establish the veracity of the informant, the statements
              indicating that a positive field test was performed on the
              “finished product” in the informant’s possession sufficiently
              demonstrated the reliability of the information.
Stevens, 989 S.W.2d at 295 (citations omitted).



       Likewise, in State v. Henning, 975 S.W.2d 290 (Tenn. 1998), the Court considered
a search warrant affidavit which stated that the informant’s “reliability has been established

by providing information which has resulted in several arrest[s] in the past.” Henning, 975

S.W.2d at 295. In addition, the affidavit stated that investigators had observed at the

location to be searched “five transactions of a type believed to be drug sales,” that the

resident of the dwelling to be searched had two prior arrests for possession of drugs with
intent to sell, and that previously a vehicle had been seized from him for “possession of

drugs.” Id. The court upheld the validity of the search warrant, stating:

              Although there is no specific allegation in the affidavit which,
              on its face, establishes the credibility of the informant, the
              independent police corroboration of the informant’s tip,
              explained in the affidavit, is sufficient to establish the
              informant’s credibility.

Henning, 975 S.W.2d at 295.



       A warrantless seizure, following an informant’s tip, was scrutinized in State v.

Bridges, 963 S.W.2d 487 (Tenn. 1997). Finding the information adequate to establish

probable cause, the court held:
                   In the present case the informant who provided the tip
              about the defendant’s criminal activity had assisted Officer
              Blackwell on a case approximately eight years earlier in which
              an arrest and conviction were made on a cocaine charge.
              Blackwell had known this informant for a number of years and
              said this informant had “always been very straightforward and
              very honest and very reliable” with him. These facts minimally
              satisfy the credibility prong of the Jacumin test.

Bridges, 963 S.W.2d at 491.

                                              14
       However, simply describing the confidential informant as “a reputable and reliable

person” was a conclusory allegation which failed to demonstrate to the magistrate either
the informant’s inherent reliability or the reliability on that particular occasion. State v.

Valentine, 911 S.W.2d 328, 329 (Tenn. 1995).



       The informant in State v. Transou, 928 S.W.2d 949 (Tenn. Crim. App. 1996), was

described as a “reliable informant who has proven reliable in the past and has been on

said premises within the past 72 hours and has seen illegal narcotics for resale.” Transou,
928 S.W.2d at 957. Citing Valentine, this Court held that this language failed to “establish

why the informant was ‘reliable’ or how the informant had ‘proven reliable in the past.’” Id.

However, in State v. Hilliard, 906 S.W.2d 466, 468 (Tenn. Crim. App. 1995), the statement
in the search warrant affidavit that “[t]he confidential informant has given information in the

past which resulted in the arrest and convictions of known drug dealers on several

occasions” satisfied the second prong of the Aguilar-Spinelli test. Id. at 468. This Court,

in State v. Moon, 841 S.W.2d 336 (Tenn. Crim. App. 1992), ruled that probable cause was

not established by the statement that “such informant is a reliable person who has given

information against his penal [interest] and in this case has given information that affiant

has checked and found to be accurate.” Id. at 337. The defendant conceded that the

reliability prong of Aguilar-Spinelli had been satisfied by the statement that “[i]nformation
received from said informant in the past has resulted in the confiscation of illeg[a]l drugs

and two convictions in a court of law.” State v. Thomas, 818 S.W.2d 350 (Tenn. Crim.

App. 1991).


       Certainly, the first prong of the Aguilar-Spinelli test is satisfied by the statements in

the affidavit in this case that the confidential informant had been within the premises to be
searched within the seventy-two hours prior to the search warrant application being

submitted to the issuing magistrate, and the recitation of the informant’s familiarity with

cocaine. Thus, the “basis of knowledge prong” is met. See Moon, 841 S.W.2d at 339.



       As to the “veracity prong,” we find this is supported by the statements in the affidavit.

It is said that the informant has “given the affiant information on at least one occasion that

led to the seizure of cocaine,” that the “informant has corroborated otherwise reliable
informant’s information and has never given information that I found to be untrue.” We

believe that this language minimally establishes the credibility of the informant and is most


                                              15
akin to that examined in Bridges, 963 S.W.2d at 491 (the informant had assisted the affiant

on a case approximately eight years earlier in which an arrest and conviction were made,

the officer had known the informant for a number of years, and the informant had always
been very straightforward, honest and reliable) and Hilliard, 906 S.W.2d at 468 (past

information from the informant had “resulted in the arrest and convictions of known drug

dealers”). Additionally, we note that the affidavit states that the informant had corroborated
“otherwise reliable informant’s information” and had never given information “found to be

untrue.” Regarding such assertions, it has been stated that:

              In a case which might otherwise be somewhat doubtful, it may
              be significant that the police officer asserts that his informant
              has never given him information which proved to be incorrect.

2 Wayne R. LaFave, Search and Seizure, § 3.3(b) (3d ed. 1996) (footnote omitted).



       In this same regard, as reported by Professor LaFave:

                   If the furnishing of good information in the past contributes
              to a belief in an informant’s credibility, the furnishing of bad
              information in the past would certainly derogate therefrom. The
              policeman who works with an informant knows of his full
              batting average, not just of his successes. If a magistrate is
              furnished, selectively, with half-truths, he is intellectually
              crippled in terms of making the informed judgment
              contemplated by the fourth amendment. It is not being overly
              cynical to suggest that in some instances, the sparsity of
              information about an informant’s credibility is prompted not by
              fear of compromising his identity but by fear that the policeman
              doesn’t really have a “substantial basis” for trusting his
              informant. In such cases, the magistrate should not be asked
              to rely upon that which the policeman himself should not really
              rely upon.

Id. (citing Moylan, “Hearsay and Probable Cause: An Aguilar and Spinelli Primer,” 25

Mercer L. Rev. 741 (1974), at 759).


       In his brief, the petitioner cites this Court’s opinion in State v. Stephen Udzinski, Jr.,

No. 01C01-9212-CC-00380, 1993 WL 473308 (Tenn. Crim. App., Nashville, Nov. 18,
1993) for the proposition that a showing of probable cause in the affidavit is weakened by

the fact that it does not set out that previous information from the informant has resulted

in arrests. However, while this argument is correct, it is also true that a consideration in

whether credibility has been established in this matter is the fact that the informant
previously gave information resulting in the seizure of cocaine and, in this matter, he told

officers that the petitioner was storing and selling cocaine in this residence:

                        When the nature of the prior information is
                   omitted, the allegations become even more
                   circumspect. Easily accessible and verifiable public
                   information--i.e., who won the game, what was
                   yesterday’s weather, and who drives a certain car--
                   impute no credibility to the informant. Only previous

                                              16
                   information that imputes credibility to the informant
                   once it is found to be accurate provides the necessary
                   basis for concluding that an informant is reliable, i.e.,
                   the drugs are at this location or the gun is in the alley.
                   Thus an affidavit which recited that an informant had
                   previously given law-enforcement information that led
                   to the discovery of a murder weapon or a shipment of
                   cocaine would sufficiently establish the informant’s
                   reliability. It would allow the magistrate to consider
                   that, on prior occasions, the person upon whom the
                   police were currently relying, had given the police
                   information not subject to public knowledge that
                   proved to be correct.

Udzinski, 1993 WL 473308, at *3.



       In addition, as to whether previous information from the informant must have

resulted in one or more convictions, Professor LaFave states:

                   Perhaps the best illustration of this point [that previous
              information from the informant need not have resulted in
              convictions] is to be found in those cases in which the critical
              allegation is that the informant’s prior information has led to the
              discovery of evidence of criminal activity. Courts have
              consistently held that an informant’s track record is sufficiently
              established by a showing (i) that on one or more prior
              occasions the informant indicated that a certain object, usually
              narcotics but sometimes such other items as stolen property,
              counterfeit money, or even the body of a homicide victim, are
              concealed at a certain place, and (ii) that this information was
              verified as true by a search which uncovered the specified
              items at the place indicated. This is a sound result, for the fact
              that “evidence was turned up which the informant indicated
              would be turned up” bears very directly upon the informant’s
              credibility.

LaFave, supra, § 3.3(b) (footnotes omitted).



       Thus, based upon these authorities, we hold that probable cause to search the

defendant’s residence was established by the search warrant.



       In addition, the defendant has asserted that his trial counsel should have filed a

motion to suppress the search warrant so that the identity of the confidential informant

could be discovered. Both the record in this matter and the opinion of the court regarding
the direct appeal of the petitioner’s conviction make it clear that there was no basis for

disclosure of the identity of the confidential informant. State v. Vanderford, 980 S.W.2d

390, 396 (Tenn. Crim. App. 1997), perm. app. denied (Tenn. 1998) (defendant not entitled

to discover informant’s identity solely to attack the search warrant). This being the case,
ineffective assistance of counsel did not occur when trial counsel for the petitioner did not

attempt to suppress the search warrant.



              4.   The trial court failed to state findings of fact and

                                              17
                   conclusions of law.

       As the petitioner correctly argues, Tennessee Supreme Court Rule 28, § 6(B)(4)(c)

states that the trial court shall, upon dismissal of a petition for post-conviction relief, enter
an order setting out its findings of fact and conclusions of law. Although a written order

was not entered in this case, the record on appeal, together with the transcript of the trial

court’s oral ruling, is sufficient for us to consider each of the issues presented.



                                       CONCLUSION

       Based upon the authorities and the reasoning set out herein, we affirm the order of

the trial court dismissing the petition for post-conviction relief.




                                            ________________________________________
                                            ALAN E. GLENN, JUDGE


CONCUR:




____________________________________
JAMES CURWOOD WITT, JR., JUDGE




____________________________________
JOHN EVERETT WILLIAMS, JUDGE




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