         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  November 6, 2007 Session

           STATE OF TENNESSEE v. KAMARA L. WHITTINGTON

                  Direct Appeal from the Circuit Court for Madison County
                            No. 06-110    Roger A. Page, Judge



                     No. W2007-00148-CCA-R3-CD - Filed April 29, 2008


Defendant pled guilty to simple possession of cocaine. Defendant properly preserved the following
certified question of law for review, “Whether the informant’s credibility was sufficiently set forth
to establish probable cause in the affidavit which provided support for issuance of the search warrant
in this case.” After a thorough review of the record, the judgment of the circuit court is reversed and
the indictment against Defendant is dismissed.

                          Tenn. R. App. P. 3 Appeal as of Right;
             Judgment of the Circuit Court Reversed and Indictment Dismissed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.
and J.C. MCLIN , J.J., joined.

Paul E. Meyers, Jackson, Tennessee, for the appellant, Kamara L. Whittington.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

I. Background

       There was no testimony at the suppression hearing. The affidavit in support of the search
warrant provides the following information relied upon by the officer to establish probable cause for
issuance of the search warrant:

              Affiant has received information regarding possible drug activity at 56 Mount
       Pinson Road in Jackson, Tennessee. Officers received information from an
       individual who had been in the residence at 56 Mount Pinson Road on 1/13/05 and
       had observed large Ziploc bags of marijuana inside the residence. The individual
       also gave information regarding the residents at 56 Mount Pinson Road, along with
       vehicles located at the residence. The individual stated the following vehicles would
       be at the residence: blue Cutlass, blue Camaro, and a gray van. The individual also
       stated Wanda Clark and a black male named Matthew lived at this residence, along
       with another black male who was just recently released from jail. Officers from the
       Metro Narcotics Unit, thru surveillance, were able the confirm the presence of the
       listed vehicles at the residence on 56 Mount Pinson Road. Further, officers did
       confirm this address to be the residence of Wanda Clark, Matthew Wittington, and
       Ernest Clark. A criminal check of Mr. Ernest Clark revealed that Mr. Clark was
       released from jail in December, 2004. Ms. Wanda Clark has an outstanding
       summons for violation of bad check law in Madison County, Tennessee. A criminal
       history check of Matthew Whittington shows a narcotics arrest in 2001. A criminal
       history check of Ernest Clark shows arrests in 2002 and 2004 for sale and delivery
       of cocaine.

        Defendant argued that the search warrant lacked evidence of independent police
corroboration because the information the police corroborated was general information, not
corroboration of criminal activity. The trial court determined that this was a “close call” but upheld
the search warrant after each party had submitted a brief on the issue. Defendant properly preserved
the question of law for appeal.

II. Analysis

        In the instant case, the only issue on appeal is “[w]hether the informant’s credibility was
sufficiently set forth to establish probable cause in the affidavit which provided support for issuance
of the search warrant in this case.” Historically, an affidavit has been an indispensable prerequisite
to the issuance of a search warrant in Tennessee. T.C.A. § 40-6-103; State ex rel. Blackburn v.
Fox, 200 Tenn. 227, 292 S.W.2d 21, 23 (1956); Harvey v. State, 166 Tenn. 227, 60 S.W.2d 420
(1933). Likewise, the affidavit must set forth on its face facts which establish probable cause before
a search warrant may issue. T.C.A. § 40-6-104; Tenn. R. Crim. P. 41(c). Thus, in Tennessee,
probable cause to support the issuance of the warrant must appear in the affidavit and judicial review
of the existence of probable cause will not include looking to other evidence provided to or known
by the issuing magistrate or possessed by the affiant. State v. Moon, 841 S.W.2d 336, 337-38 (Tenn.
Crim. App. 1992); State v. Jacumin, 778 S.W.2d 430,432 (Tenn. 1989); Harvey, 60 S.W.2d at 420.

       The Fourth Amendment to the United States Constitution, made applicable to the States by
the Fourteenth Amendment, provides:

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



                                                 -2-
       Article I, section 7 of the Tennessee Constitution provides that:

       People 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 ought
       not to be granted.

Both of these constitutional provisions are intended to “safeguard the privacy and security of
individuals against arbitrary invasions of government officials.” Camara v. Municipal Court, 387
U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930 (1967); see also State v. Keith, 978 S.W.2d
861, 865 (Tenn.1998).

         The Fourth Amendment warrant requirement demands that a probable cause determination
be made by a neutral and detached magistrate. State v. Valentine, 911 S.W.2d 328, 330 (Tenn.
1995); Jacumin, 778 S.W.2d at 431; Moon, 841 S.W.2d at 338. “Probable cause exists where the
facts and circumstances within [the officers’] knowledge and of which they had reasonably
trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the
belief that an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-
76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1897 (1949) (citing Carroll v. United States, 267 U.S. 132,
162, 45 S. Ct. 280, 288, 69 L. Ed. 543 (1925)). If probable cause is absent, the magistrate is not
empowered to issue a warrant. When reviewing the issuance of a search warrant, this Court must
determine whether the magistrate had a substantial basis for concluding that a search warrant would
uncover evidence of wrongdoing. The magistrate’s judgment is entitled to great deference on appeal.
Jacumin, 778 S.W.2d at 431-32.

        In Jacumin, our Supreme Court adopted a two-pronged standard for determining whether
probable cause exists under the circumstances presented in the affidavit submitted to the magistrate.
In doing so, the Court relied upon the authority of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509,
12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637
(1969) and expressly rejected the “totality of the circumstances” approach found in Illinois v. Gates,
462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Jacumin, 778 S.W.2d at 436. According
to this two-pronged test, when the affiant relies upon hearsay information from a confidential
informant, the magistrate must be convinced that: (1) the informant possesses a “basis of
knowledge” concerning the reported events and (2) that the veracity of the information is not in
question. Id. at 432; Moon, 841 S.W.2d at 338. In order to meet the first prong of this standard, the
affiant must inform the magistrate of some of the underlying circumstances which led to the
informant’s knowledge. Moon, 841 S.W.2d at 338. As for the second prong, the magistrate must
be informed of some of the underlying circumstances from which the affiant concluded that the
informant was credible and/or his information in the present situation was reliable. Id. The affidavit
must contain more than merely conclusory allegations. Id. However, independent police



                                                 -3-
corroboration of the information provided by the informant may make up for deficiencies in either
prong. State v. Powell, 53 S.W.3d 258, 263 (Tenn. Crim. App. 2000).

        In the instant case, the informant was a member of the criminal milieu. Therefore, in order
for the information to be credible, the factors of Aguilar-Spinelli must be satisfied. The “basis of
knowledge” prong is satisfied by the informant’s representation that he was present at 56 Mount
Pinson Road and saw large bags of marijuana at the residence. This information is listed in the
search warrant affidavit; however, there is no information as to the credibility of the informant
contained in the search warrant.

        The State argues that the affiant provided sufficient independent corroboration of the
informant’s information to establish the reliability of the information. In State v. Smotherman, 201
S.W.3d 657 (Tenn. 2006), our Supreme Court dealt with the credibility issue of an informant. In
Smotherman, the affiant, Chief Ric Wilson, stated he had “good ground and belief” that evidence
of illegal drug activity would be found in the residence of Teresa Smotherman, James Smotherman,
and the defendant. Smotherman, 201 S.W.3d at 659. Chief Wilson stated that the reasons for his
belief were as follows:

       [A]n agent, known only to the affiant, within the past eighteen (18) days, was on the
       above described premises on two separate occasions [and] did purchase Hydrocodone
       from Teresa Smotherman. During both drug transactions the aforementioned, Teresa
       Smotherman, did retrieve the Hydrocodone pills from the above described residence,
       and said pills were exchanged for cash by the agent. This agent within the past
       eighteen (18) days purchased and observed a quantity of Hydrocodone in the
       possession of Teresa Smotherman, at the above described residence. This agent is
       familiar with the appearance of Hydrocodone and while at the residence a drug
       transaction took place. The above described property, according to 911 records
       maintained by the Wayne County Sheriff’s Department, is the residence of James
       “Buddy” Smotherman. The affiant knows from his personal experience as the police
       chief of Waynesboro that the home is the residence of James “Buddy” Smotherman
       and his wife Alice Smotherman. He therefore complains and asks that a warrant issue
       to search the person and premises of the said Teresa Smotherman, Alice
       Smotherman, [and] James “Buddy” Smotherman at the above described [residence]
       in said county, where he believes said personal property above is now possessed.

Id. at 659-60. The State, on appeal, contended that the use of the word “agent” was sufficient to
establish the informant as a law enforcement officer. Our Supreme Court disagreed and determined
that the use of the word “agent” without any other information as to who the informant was did not
meet the standard of reliability required by Aguilar/Spinelli. Id. at 663. Further, our Supreme Court
concluded that the information given could have been supplied by a criminal informant, and,
therefore, without more information as to the “agent’s” identity, the presumption of reliability of a
law enforcement officer does not apply. Id. Because our Supreme Court determined that the



                                                -4-
presumption of reliability does not apply, it then had to determine whether or not there was enough
independent corroboration by the police of the information supplied. Our Supreme Court stated:

       With regard to the corroboration necessary to satisfy the veracity prong, the events
       observed by the police need not supply probable cause by themselves or point
       unequivocally toward guilt. Moon, 841 S.W.2d at 341. The observations by police
       are sufficient if they provide an “‘unusual and inviting explanation,’” even though
       the observations are “‘as consistent with innocent as with criminal activity.’” Id.
       (quoting Wayne R. LaFave, Search and Seizure, § 3.3(f) at 683 (2d ed.1987)).
       Corroboration of more than a few minor elements of the informant’s information is
       necessary, however, especially if the elements relate to non-suspect behavior. Id.;
       see also United States v. Bush, 647 F.2d 357, 363 (3d Cir. 1981).

Id. at 664. In Smotherman, the only information verified by the affiant was that the defendant and
her husband resided at the premises described by the “agent.” Our Supreme Court concluded that
this “corroboration involves only one element of non-suspect behavior and offers little support to
the credibility of the informant or the reliability of the informant’s information regarding the
occurrence of drug transactions at the defendant’s residence. We, therefore, conclude that the
independent police corroboration in this case fails to compensate for deficiencies in the veracity
prong.” Id.

      The State, in the instant case, relied on five assertions that independent police corroboration
showed the informant’s information to be reliable. These were:

       (1) Police observed three vehicles at 56 Mount Pinson Road as reported by the
       informant. This observation occurred on the same day that the informant saw the
       vehicles at the home and the same day the affidavit was made.

       (2) Police confirmed that Wanda Clark and Matthew Whittington resided at 56
       Mount Pinson Road corroborating the full name and the first name of the residents
       reported by the informant. The resident, whose name was unknown to the informant,
       was determined by police to be Ernest Clark. Mr. Clark’s status as being recently
       released from jail was confirmed by police investigation.

       (3) Police discovered that Wanda Clark had an outstanding summons in Madison
       County for violation of the bad check law.

       (4) Police found that Matthew Whittington had a “narcotics arrest” (but no mention
       of a conviction) in 2001.

       (5) Police discovered that Ernest Clark was arrested (but, again, no mention of a
       conviction or current status) for the sale and delivery of cocaine in 2002 and 2004.



                                                 -5-
        Identification of the presence of the three vehicles located at a house where three people
reside is a “non-suspect” event. While an outstanding summons for the violation of the bad check
law indicates at least probable cause of a misdemeanor theft related offense, it has little, if any,
corroborative value as to corroborating the possession of marijuana. It is also “non-suspect”
behavior for it to be established that a person has been in jail for an unspecified offense.

        That leaves two facts uncovered by independent police investigation and submitted to
establish that the informant’s information in this particular case is reliable. First, one resident was
arrested in 2001 for a narcotics offense, and, secondly, another resident was arrested in 2002 and
again in 2004 for the sale and delivery of cocaine. This knowledge alone does not constitute
probable cause. If there had been other factors corroborated by the police outside of the “non-
suspect” behavior, the discovery of the prior arrests could have provided a basis for probable cause
in addition to the other factors. See State v. Hennings, 975 S.W.2d 290, 295 (Tenn. 1998). In this
instant case, however, that did not occur. While everything the informant told the police was found
to be true, it was information that anyone could have obtained and did not pertain to any criminal
activity. The only specific information provided by the informant and corroborated by the police was
presence of the cars in the driveway and the residents of the home. This is all non-suspect activity
and is, therefore, insufficient to negate the deficiency in the search warrant. Because there is no
information given in the search warrant as to the credibility of the informant and because of the lack
of police corroboration to establish the reliability of the informant’s information of criminal activity,
the search warrant did not meet the standards of Aguilar/Spinelli. Accordingly, the judgment of the
circuit court is reversed and the indictment against Defendant is dismissed.

                                           CONCLUSION

        For the foregoing reasons, the judgment of the criminal court is reversed and the indictment
against Defendant is dismissed.

                                                        ____________________________________
                                                        THOMAS T. WOODALL, JUDGE




                                                  -6-
