        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 21, 2010

          STATE OF TENNESSEE v. RONALD JEROME GLEAVES

             Direct Appeal from the Criminal Court for Davidson County
                     No. 2007-D-3248 Mark J. Fishburn, Judge




                No. M2009-01045-CCA-R3-CD - Filed August 13, 2010


The Defendant, Ronald Jerome Gleaves, was indicted following the execution of a search
warrant that led to the discovery and seizure of narcotics. The Defendant moved to suppress
the evidence seized during the search, arguing the warrant was unconstitutionally issued.
The trial court granted the Defendant’s motion and dismissed the charge against the
Defendant. The State appeals, contending the warrant was valid, and the evidence was
admissible. After a thorough review of the record and applicable law, we reverse the order
suppressing the drugs found during the execution of the search warrant. We vacate the order
dismissing the indictment and remand for further proceedings consistent with this opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
                                  and Remanded

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL, J., joined. D AVID H. W ELLES, J., not participating.

Erik R. Herbert, Nashville, Tennessee (at motion to suppress), and Ronald Jerome Gleaves,
Pro se, Clifton, Tennessee (on appeal).

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Leslie E. Price, Assistant Attorney General; Victor S. Johnson, III, District Attorney General;
Shannon E. Poindexter, Assistant District Attorney General, for the Appellant, State of
Tennessee.

                                         OPINION

                                       I. Background
       In May 2007, Metro Nashville Police Department officers obtained and executed a
search warrant for the residence located at 601 South 9th Street in Nashville, Tennessee.
During this search, they discovered hydromorphone. This discovery led a Davidson County
grand jury in November 2007 to indict the Defendant for intent to sell or deliver fifty grams
or more of a Schedule II controlled substance within 1000 feet of school property, a Class
A felony. See T.C.A. § 39-17-417(i)(3) (2009).

       The Defendant, through counsel, moved to suppress the evidence discovered during
the search of the residence located at 601 South 9th Street, Nashville, Tennessee, arguing the
warrant was unsupported by probable cause because the affidavit filed in support of the
warrant failed to establish a sufficient nexus between drug-related activity and the residence.

       The technical record does not contain a transcript of a suppression hearing, and the
record does not suggest that such a hearing took place. The record does, however, contain
a copy of the warrant and its supporting affidavit, each party’s memorandum in support of
their position with respect to the Defendant’s Motion to Suppress, and the trial court’s order
granting the Motion to Suppress. Both the memoranda and the order recite details about the
search warrant’s execution that are not otherwise mentioned in the record.

        The affidavit, dated April 26, 2007, alleged that probable cause existed to believe that
the following items, among others, were located within or upon the premises known as 601
South 9th Street: controlled substances, drug paraphernalia, proceeds from drug sales,
records of drug sales, weapons, and items used to conceal the foregoing materials.

       The affidavit stated the training and credentials of the affiant, Detective J. David
Goodwin: An officer since 1997, he was a member of the Narcotics Unit of the Specialized
Investigation Division of the Metro Nashville Police Department. He had participated in the
execution of over three hundred search warrants, had attended numerous training workshops
on the subject of asset forfeiture, money laundering investigations, and the investigation of
complex drug organizations.

       The detective stated that, from his training and experience, he had learned that
“persons present at locations where illegal narcotics are sold and/or used often have
contraband, narcotics, paraphernalia, weapons, or other evidence of criminal conduct hidden
on their person or in their belongings.” He further stated that narcotic offenders “very often”
hide “contraband, proceeds of drug sales, and records of drug transactions” in secure
locations such as banks, safe deposit boxes, storage units, residences, businesses, or “other
locations which they control.”

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        A confidential informant, who had “previously provided information that ha[d] lead
to the recovery of narcotics,” informed the detective that “narcotics were being sold from 601
S. 9th St.” Within seventy-two hours before the affiant swore to the affidavit, detectives
established surveillance of 601 South 9th Street, and the informant contacted “Zee,” a black
male, with whom the informant arranged to purchase Dilaudid, a Schedule II substance. Zee
instructed the informant to meet him at a Gallatin Road location in order to conduct the sale.
While an undercover officer escorted the informant to the meeting location, the detectives
conducting surveillance of the South 9th Street residence observed a black male, later
identified as Zee, leave in a car. Detectives followed Zee’s car, which went directly to the
meeting place where officers observed Zee selling the informant a bag of yellow Dilaudid
pills. Detectives followed Zee as he left the meeting place and directly returned to the South
9th Street residence. The affidavit does not identify either the Defendant or his co-defendant
as the man police knew as Zee.

       Based on the activity observed near the 601 South 9th Street residence, the detective
requested authorization to search, among other things, the residence, all persons present, all
vehicles present, and all vehicles related to all persons present. The magistrate granted the
search warrant, authorizing detectives to search each requested area.

        As discussed above, several documents in the record reference facts either stipulated
to by the parties or established during a preliminary hearing not memorialized in the record.
 The Defendant’s Motion to Suppress states that, when the search warrant was executed on
May 1, 2007, officers searched the residence but found no contraband. They detained the
Defendant, his girlfriend, and Michael Wilson, the Defendant’s co-defendant, who were all
present at 601 South 9th Street. A search of Wilson’s person yielded a loaded gun, a cell
phone, and the keys to a Lincoln LS parked behind the residence. A search of the
Defendant’s person yielded a cell phone and $11,790 in cash. Officers searched the Lincoln
LS and recovered seventeen bags of yellow pills from the passenger door panel. The
Tennessee Bureau of Investigation determined these bags contained 1600 pills, totaling 150.9
grams of hydromorphone, a Schedule II controlled substance.

       The Defendant argued in his Motion to Suppress that the affidavit contained
insufficient probable cause because, pursuant to the Tennessee Court of Criminal Appeals
decision in State v. Saine, simply returning to a residence after a drug deal does not give
probable cause to believe the residence contains evidence of criminal conduct. See State v.
Cedric Ruron Saine, No. M2007-01277-CCA-R3, 2008 WL 918511 (Tenn. Crim. App., at
Nashville, Apr. 4, 2008), rev’d State v. Saine, 297 S.W.3d 199-206-07 (Tenn. 2009).1 The


       1
         We will discuss in more detail below the Tennessee Supreme Court’s recent reversal of this
Court’s decision in Saine.

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Defendant also argued the confidential informant’s statement that drugs were being sold from
the residence lacked the factual basis necessary for the statement to support a probable cause
determination. See State v. Jacumin, 778 SW.2d 430, 436 (Tenn. 1989).

        The State’s memorandum in opposition to the Defendant’s Motion to Suppress largely
echoes the Defendant’s recitation of the facts surrounding the execution of the warrant. In
its memorandum, the State argues that the police observation of the Defendant leaving the
601 South 9th Street residence, selling drugs to the informant, and returning to the residence
establishes a sufficient nexus between the criminal activity and the residence. It argued that
the Defendant’s challenge to the sufficiency of the affidavit as it related to the informant was
misplaced because the magistrate relied on the officers’ account of the controlled buy when
it issued the search warrant.

        The trial court entered a written order granting the Defendant’s Motion to Suppress.
In that order, the trial court refers to Zee and the Defendant interchangeably. The order’s
description of the warrant’s execution is nearly identical to that of the Defendant’s Motion
to Suppress. The trial court’s order appears to proceed from the legal assumption that an
application for a warrant to search a residence for drugs must establish that drugs are being
sold from the residence. The trial court first found that the affidavit did not set out the
informant’s basis of knowledge for his statement, as required by Jacumin. The trial court
then found that, because drugs were not sold from the house during the controlled buy, the
officers’ observations during the controlled buy could not cure the deficiency in the
informant’s reliability by corroborating his statement. The trial court explained that, due to
this deficiency, the informant’s statement that drugs were sold from 601 South 9th Street was
not reliable under Jacumin and could not be relied upon in issuing the search warrant.

       The trial court ultimately found that probable cause did not exist to support a search
warrant because the affidavit did not indicate how long the Defendant remained at the
residence, whether he resided in the residence, and whether he stored and retrieved drugs
from the residence. The trial court noted that a defendant’s being a drug dealer is insufficient
alone to establish a nexus between criminal activity and the drug dealer’s home, for purposes
of obtaining a search warrant for the dealer’s home. Having concluded that the warrant was
unsupported by probable cause, the trial court granted the Defendant’s Motion to Suppress
the evidence seized during the search of the residence and premises of 601 South 9th Street.
After the State informed the trial court that, without the suppressed evidence, it could not
proceed to trial, the trial court dismissed the charge against the Defendant. The State now
appeals the trial court’s order granting the Defendant’s Motion to Suppress.

                                         II. Analysis



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        On appeal, the State contends the trial court erred when it suppressed the evidence
seized during the search of the residence at issue. It argues that, because the affidavit set out
that officers had observed the Defendant leave the residence, sell drugs to their confidential
informant, and return to the residence, the issuing magistrate had probable cause to issue the
search warrant. The State supplemented its brief with a copy of State v. Saine, a Tennessee
Supreme Court opinion released after briefs were filed in this case. The Saine court held that
a police officer’s observation of a drug seller leaving from and returning to the drug seller’s
residence before and after a drug deal gives probable cause to believe the residence will
contain the drug seller’s supply. State v. Saine, 297 S.W.3d 199, 206-07 (Tenn. 2009).

        The Defendant responds that the trial court properly suppressed the evidence seized
during the search of the residence at issue. He contends that the affidavit failed to establish
either that he was the drug seller known as “Zee,” or that the property located at 601 9th
Avenue South was his residence. He argues that, lacking evidence of these facts, the
affidavit contained insufficient information to support the inference that the residence would
contain evidence of drug-related activity.

        The standard of review for a trial court’s findings of fact and conclusions of law in
a suppression hearing was established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). This
standard mandates that “a trial court's findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.” Id. at 23. The prevailing party in the trial
court is “entitled to the strongest legitimate view of the evidence adduced at the suppression
hearing as well as all reasonable and legitimate inferences that may be drawn from that
evidence.” Id. Furthermore, “[q]uestions of credibility of the witnesses, the weight and
value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the
trial judge as the trier of fact.” Id. However, this Court reviews the trial court’s application
of the law to the facts de novo, without any deference to the determinations of the trial court.
State v. Walton, 41 S .W.3d 75, 81 (Tenn. 2001).

      We begin our analysis with the Fourth Amendment to the United States Constitution,
made applicable to the states through the Fourteenth Amendment, which provides as follows:

       The right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, will not be violated, and
       no warrants will issue, but upon probable cause, supported by oath or
       affirmation, and particularly describing the place to be searched, and the
       persons or things to be seized.

U.S. Const. amend. IV; see Mapp v. Ohio, 367 U.S. 643, 655 (1961). Similarly, Article I,
Section 7 of the Tennessee Constitution provides:

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       [P]eople shall be secure in their persons, houses, papers and possessions, from
       unreasonable searches and seizures; and that general warrants, whereby an
       officer may be commanded to search suspected places, without evidence of the
       fact committed, or to seize any person or persons not named, whose offences
       are not particularly described and supported by evidence, are dangerous to
       liberty and not to be granted.

Tenn. Const. art. I, § 7.

        “[A] search warrant shall be issued only on the basis of an affidavit, sworn before a
‘neutral and detached’ magistrate, which establishes probable cause of its issuance.” State
v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999). To establish probable cause to issue a search
warrant, an affidavit must supply reasonable grounds for suspicion that an illegal act is
occurring. Id. Thus, the need for the magistrate to make a neutral and detached decision
regarding the existence of probable cause requires that the affidavit contain more than mere
conclusory allegations by the affiant. State v. Moon, 841 S.W.2d 336, 338 (Tenn. Crim. App.
1992).

        An affidavit must show a nexus between the criminal activity, the place to be
searched, and the items to be seized in order to give a magistrate probable cause to issue a
warrant. State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002); State v. Smith, 868 S.W.2d 561,
572 (Tenn. 1993). When the affidavit contains no direct evidence of such a nexus, “we must
. . . determine whether it was reasonable for the magistrate to infer that the item of
contraband listed in the affidavit would be located” in the place to be searched. Saine, 297
S.W.3d at 206. In evaluating the likelihood that a residence will contain an item of
contraband, we consider “whether the criminal activity under investigation was an isolated
event or a protracted pattern of conduct[,] . . . the nature of the property sought, the normal
inferences as to where a criminal would hide the evidence, and the perpetrator’s opportunity
to dispose of incriminating evidence.” Reid, 91 S.W.3d at 275; see also Smith, 868 S.W.2d
at 572.

        In Saine, the Tennessee Supreme Court recently held that circumstances similar to
those in this case constituted probable cause to issue a search warrant. Saine, 297 S.W.3d
at 206-07. In that case, a detective swore by affidavit that he observed the defendant leave
his residence, sell drugs to a confidential informant, and return directly to his residence. Id.
at 203-04. The detective also stated in the affidavit that, in his experience, drug sellers
commonly stored drugs, proceeds, and records thereof in their residences or “other locations
which they control.” Id. at 202. The Supreme Court explained that an affidavit lacking
“definite proof that the seller keeps his supply at his residence” gives probable cause to

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search a location as long as the affidavit contains “some additional facts,” such as that the
seller went to his home either before or after the sale, “which would support the inference
that the supply is probably located there.” Id. (quoting 2 Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment § 3.7(d) (4th ed. 2004 & Supp.2008-09)
(footnotes omitted). The Court concluded that, because the detective stated his knowledge
of drug sellers’ storage practices and because the detective observed the defendant travel
directly to the controlled buy location from his home and directly return, the magistrate had
probable cause to believe the home would contain evidence of his drug activity. Id. at 206-
07.

       In this case, the affidavit explained that a confidential informant informed police that
drugs were being sold from the residence at 601 South 9th Street. At the officers’ direction,
the confidential informant then arranged to buy drugs from a man named Zee, identified in
several parts of the record as the Defendant, at a nearby location. Officers then observed the
Defendant travel from the 9th Street residence directly to the agreed location, sell the
informant drugs, and directly return to the 9th Street residence. Detective Goodwin filed an
affidavit requesting a search warrant within seventy-two hours of the controlled buy. In the
affidavit, the detective stated that, in his experience, drug sellers “very often hide contraband,
proceeds of drug sales, and records of drug transactions in secure location[s] such as their
own banks, safe deposit boxes, storage units, residences, businesses, or other locations which
they control.” The affidavit does not contain any statement identifying the house at 601
South 9th Street as the Defendant’s residence.

       The State contends on appeal that the majority of both state and federal jurisdictions
have sanctioned the issuance of a search warrant of a drug dealer’s home, especially where
the dealer either came from his home to conduct the sale or returned to his home after the
sale. The State supplemented its brief with the Saine opinion, which falls in line with the
majority of federal and state courts. The State argues that, because police observed the
Defendant leave the South 9th Street residence, sell their informant drugs, and directly return
to the residence, the magistrate had probable cause to believe the residence contained
evidence of the Defendant’s drug activity, such as proceeds of the sale. As a result, the State
argues, the trial erred in suppressing the evidence seized during the execution of the warrant.

       The Defendant contends in response to the State’s appeal that the affidavit failed to
establish his identity as “Zee,” the man from whom the informant bought drugs. The trial
court in its order suppressing the evidence seized referred to the Defendant and Zee
interchangeably. Thus, the trial court implicitly found that the Defendant was the person
known as Zee who sold the informant drugs. The Defendant did not attack his identity as
Zee in his motion for suppression of evidence seized in this case. Rather, he argued in his
motion simply that a drug seller’s leaving and returning to his residence before and after a

                                                7
drug deal does not constitute probable cause to search his residence. Thus, the Defendant
appears originally to have conceded his identity as “Zee.” Further, the Defendant’s identity
as Zee is not necessary for a valid search warrant to issue for a residence associated with Zee.
If the affidavit set forth sufficient facts from which to infer the residence contained supplies,
proceeds, and records of Zee’s drug activity, the affidavit contained probable cause to search
the residence. The Defendant’s first contention, therefore, does not affect our view of the
warrant’s lawfulness.

        The Defendant’s second argument is that the affidavit failed to establish that the home
searched was his residence. Indeed, the affidavit in this case does not contain any asssertion
that the home at 601 South 9th Street was the Defendant’s, or Zee’s, residence. The
authoritative case in this jurisdiction, State v. Saine, concerned the search of the home of a
drug dealer. 297 S.W.3d at 202, et seq. Many of the cases cited in Saine for persuasive
authority likewise concerned the homes of drug dealers. Id. The facts here, however,
concern a home, which a drug dealer, who may or may not reside at the home, used as a base
for his sale of drugs to an informant. The significance of this difference warrants discussion.

        The justification for allowing the search of a drug dealer’s home is that, under some
circumstances, one may reasonably infer that a drug dealer is storing evidence of his drug
activity in his home. Saine, 297 S.W.3d at 206. Both common sense and the information
commonly set forth by police applying for drug-related search warrants support this idea. In
fact, as the officer in this case advised, drug sellers “very often” hide evidence of their drug
transactions in “locations which they control.” In our view, therefore, one could reasonably
infer that a drug dealer is storing drug-related material in a home he uses, though he may not
formally reside in the home. We note that the alternative position, that an affidavit must
clearly establish that the place to be searched is the dealer’s formal residence, would require
law enforcement to acquire documentation connecting a dealer to a home. Acquiring this
documentation would be impossible in some cases, e.g. where a dealer permanently lives in
a home but is not mentioned in the title or lease pertaining to the home. Further, efforts by
law enforcement personnel to obtain this information might inadvertently alert the dealer of
their intent to obtain a search warrant of his home, leading the dealer to remove or destroy
evidence. Another obvious ramification of this approach would be that drug dealers would
operate out of the home of another without threat of police searching the home.

      In this case, the affidavit contains information that suggests the dealer Zee had some
form of constancy in his dealings with the searched residence. To wit, the informant, who
was aware that someone was selling drugs from the residence, chose to contact Zee.
Therefore, the informant apparently believed Zee to be involved in this drug activity
connected to the residence. Indeed, after the informant, at the suggestion of law
enforcement, called Zee and arranged to buy drugs from him at a location near the house,

                                               8
police observed Zee leave the house, travel to the agreed upon location, sell the informant
drugs, and return to the residence. The informant’s association of Zee with the drug-related
activity at the residence as well as Zee’s observed exiting and entering the residence implies
that Zee, at a minimum, was free to come and go from the residence. We conclude that one
could reasonably infer from the affidavit that dealer Zee was “in control of” the residence.
Further, the Defendant’s direct trip from the residence to the controlled buy and direct return
to the residence provide the “additional facts” necessary to “support the inference that
[dealer’s] supply is probably located [at the residence].” Saine, 297 S.W.3d at 206. The
affidavit, therefore, established a nexus between the drug dealing, the dealer, and the
residence, and the magistrate had probable cause to issue the search warrant. Reid, 91
S.W.3d at 275; see also Smith, 868 S.W.2d at 572. We, therefore, reverse the decision of the
trial court granting the Defendant’s Motion to Suppress the evidence seized during the search
of the residence at 601 South 9th Street.

                                       III. Conclusion

       After a thorough review of the record and applicable law, we conclude that the trial
court improperly granted the Defendant’s Motion to Suppress the evidence seized during the
search of 601 South 9th Street. As such, we reverse the order suppressing the drugs found
during the execution of the search warrant. We vacate the order dismissing the indictment
and remand for further proceedings consistent with this opinion

                                               ____________________________________
                                                    ROBERT W. WEDEMEYER, JUDGE




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