        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               September 9, 2009 Session

         STATE OF TENNESSEE v. EDWARD GARCIA SUMMERS

            Direct Appeal from the Criminal Court for Davidson County
                    No. 2008-B-1754    Monte Watkins, Judge




                 No. M2008-02684-CCA-R3-CD - Filed April 28, 2010


The defendant, Edward Garcia Summers, was indicted for possession with the intent to sell
.5 grams or more of a substance containing cocaine, possession of marijuana, and possession
of drug paraphernalia, all charges based upon evidence seized during a search of his
residence. The defendant filed a motion to suppress the evidence, alleging that there was no
probable cause to support the issuance of the search warrant. The trial court granted the
defendant’s motion, and the State now appeals. Upon review, we reverse the judgment of
the trial court and remand for further proceedings.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J ERRY L. S MITH and
J.C. M CL IN, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant
District Attorney General, for the appellant, State of Tennessee.

Jeffery A. Devasher (on appeal), Lisa D’Souza (on appeal), and Katie Weiss (at trial),
Nashville, Tennessee, for the appellee, Edward Garcia Summers.


                                        OPINION

       At the suppression hearing, the only proof adduced was the affidavit in support of the
search warrant, and the parties submitted arguments regarding the affidavit. The defendant
argued that the affidavit in support of the search warrant did not provide a sufficient nexus
between the crimes alleged and the place to be searched, namely the defendant’s residence.
The defendant maintained that the affidavit did not reflect that a drug buy occurred in the
defendant’s residence nor did it definitively allege that the drugs came from the defendant’s
residence. The State contended that the nexus contained in the affidavit consisted of the facts
indicating that the defendant received a call setting up the drug buy and that he returned to
his residence before proceeding to the drug buy.

      The affidavit in support of the search warrant provided that the search was to be
conducted at “308 Plus Park Blvd. Berkley Ridge Apartments Apt. L-14, Davidson County
Nashville, TN 37217, and/or upon the persons of any others using or occupying the
premises.” In support of the search warrant, the following facts were recited:

                     This affidavit is made by Detective Gary Sneed who has
              been a sworn police officer since 2001, has participated in
              narcotics enforcement since 2004, and is now currently assigned
              to South Crime Suppression Unit, who now testifies herein as to
              facts which are based upon personal knowledge, upon
              information received from other law enforcement officers, or
              information received from other sources as noted, which your
              Affiant believes to be true, and is as follows: During October[]
              2007, your affiant . . . received information that illegal narcotics
              are being sold at 308 Plus Park Blvd. Berkley Ridge Apartments
              Apt. L-14, Davidson County Nashville, TN 37217. Within the
              last 72 hours, your Affiant met with a Confidential Informant
              (hereafter referred to as CI). CI was searched for contraband
              and stripped of money of their own. CI was wired with an
              electronic listening device. Said CI was then given previously
              photocopied buy money and instructed to purchase a quantity of
              crack cocaine from 308 Plus Park Blvd. Berkley Ridge
              Apartments Apt. L-14, Davidson County Nashville, TN 37217.
              The CI made the phone call to set up the crack cocaine purchase,
              and was driven to the area of 308 Plus Park Blvd. Berkley Ridge
              Apartments Apt. L-14, Davidson County Nashville, TN 37217.
              The CI was dropped off in front of Building “O” at the Berkley
              Ridge Apartments. Detective Blaisdell observed the target
              subject on the phone with the CI, and once the conversation was
              finished the subject walked into 308 Plus Park Blvd. Berkley
              Ridge Apartments Apt. L-14, Davidson County Nashville, TN
              37217. Detective Blaisdell then observed the target subject exit
              308 Plus Park Blvd. Berkley Ridge Apartments Apt. L-14,
              Davidson County Nashville, TN 37217, and the target subject

                                              -2-
              then entered his 1999 Dodge Durango . . . Blue in color and
              drove to the area of building “O” at Berkely Ridge Apartments.
              CI bought a quantity of crack cocaine from the occupant of 308
              Plus Park Blvd. Berkley Ridge Apartments Apt. L-14, Davidson
              County Nashville, TN 37217[] and then I immediately picked up
              the CI in front of Building “O” once the target subject left the
              complex. The CI at this time turned over a white rock
              substance. The exchange was monitored by detectives through
              the use of the electronic listening device. Based on your
              affiant’s training and experience, the white rock material is
              crack cocaine, a Schedule II controlled substance. The white
              rock material was consistent in color, texture, smell and
              appearance with crack cocaine your affiant has seized in
              connection with other narcotics investigations. The substance
              also field-tested positive for cocaine base. The CI was then
              searched and no other contraband was found. Said CI is familiar
              with crack cocaine from past exposure and experience, and has
              given information in the past that has led to the lawful recovery
              of illegal narcotics. Affiant will disclose the CI’s name only to
              the Judge signing the warrant. The CI wishes to remain
              anonymous for fear of reprisal. . . .

        The affidavit stated that, based upon the affiant’s training, experience, and
participation in other successful drug investigations, drug dealers keep documents relating
to their business and often those records are maintained at the residence of the drug dealer
or an accomplice. The affidavit further stated that

              [d]rug dealers very often will hide contraband, proceeds of drug
              sales and records of drug transactions in secure location[s] such
              as their own residences, locations which they control but which
              are titled in the names of others, residences of others who are
              participants in or aiders and abettors of the drug conspiracy,
              their businesses, and bank safety deposit boxes to conceal them
              from law enforcement officials.

       After listening to the arguments and reading the affidavit, the trial court found:

              [T]he present affidavit does not state with any particularity
              corroborating information to attest to the necessary probable
              cause that drugs will be found in the defendant[’s] apartment

                                             -3-
              apart from the fact that the defendant resides there. The police
              have stated as a basis of reliability that drug dealers keep
              evidence of their drug dealing in their home. This basis of
              reliability here is not sufficient to satisfy the reliability prong of
              the Aguilar-Spinelli two-prong test. The police were only able
              to confirm the defendant resided at the house to be search[ed]
              and this one element of non-suspect behavior offers little
              support to the credibility of the informant or the reliability
              regarding the occurrence of drug transactions at the defendant’s
              residence.

Based upon the foregoing, the trial court found that there was an insufficient nexus between
the drug buy and the defendant’s apartment. Accordingly, the trial court suppressed the
evidence found as a result of the search. On appeal, the State contests this ruling.

                                         II. Analysis

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for citizens against “unreasonable
searches and seizures.” Generally, absent a few narrowly defined exceptions, a search must
be conducted according to a valid search warrant to be reasonable. See State v. Brown, 294
S.W.3d 553, 561 (Tenn. 2009). Search warrants are to be issued only upon a showing of
probable cause, which “must be based upon evidence included in a written and sworn
affidavit.” State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998). “A showing of probable
cause requires, generally, reasonable grounds for suspicion, supported by circumstances
indicative of an illegal act.” State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999). To
establish probable cause

              [a]n affidavit in support of a search warrant must set forth facts
              from which a reasonable conclusion might be drawn that the
              evidence is in the place to be searched. The nexus between the
              place to be searched and the items to be seized may be
              established by the type of crime, the nature of the items, and the
              normal inferences where a criminal would hide the evidence.

State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993) (citations omitted). As a general rule,
“‘affidavits must be looked at and read in a commonsense and practical manner’, and . . . the
finding of probable cause by the issuing magistrate is entitled to great deference.” State v.
Bryan, 769 S.W.2d 208, 211 (Tenn. 1989) (quoting State v. Melson, 638 S.W.2d 342, 357
(Tenn. 1982)).

                                               -4-
        Both the appellant and the State contend that this case is governed by State v. Cedric
Ruron Saine, No. M2007-01277-CCA-R3-CD, 2008 WL 918511 (Tenn. Crim. App. at
Nashville, Apr. 4 2008), perm. to appeal granted, (Tenn. Dec. 15, 2008). In that case, Saine
filed a motion to suppress evidence recovered during a search of his residence, alleging that
the search warrant for his residence was not supported by probable cause. Id. at *1. The
affidavit in support of the search warrant alleged that a confidential informant arranged to
purchase drugs from Saine, but the purchase took place at an undisclosed location, not at
Saine’s residence. Id. The affidavit further alleged that Saine left his residence to meet with
the confidential informant and that he returned to his residence after the sale. Id. at *2. The
trial court found that there was no nexus between the drug purchase and Saine’s residence
and that the evidence should therefore be suppressed. Id. at *5. On appeal, this court
affirmed the judgment of the trial court. Id. at **7-9.

        Based upon this court’s ruling in Saine, we would have affirmed the trial court’s
ruling in the instant case. However, our supreme court granted permission to appeal this
court’s decision in Saine, and, after the instant case was argued at the suppression hearing
in the trial court and at oral argument before this court, our supreme court released State v.
Saine, 297 S.W.3d 199 (Tenn. 2009), concluding that there was a sufficient nexus between
the drug purchase and Saine’s residence. The court acknowledged that the affidavit did not
contain direct information connecting the drug purchase with Saine’s residence and therefore
sought to determine if the affidavit provided sufficient proof for the magistrate to infer that
the contraband would be located in Saine’s residence. Id. at 206. In making this
determination, our supreme court noted:

              “[T]here need not be definite proof that the seller keeps his
              supply at his residence. . . . [I]t will suffice if there are some
              additional facts, (such as that . . . the seller or buyer went to his
              home prior to the sale 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)). The court found that the information in the
affidavit indicating that officers observed Saine leaving from his residence to go to the drug
purchase and immediately returning to his residence could lead a magistrate to reasonably
infer that drugs were located in Saine’s residence. Id. The court concluded that the inference
was further supported by the officer stating in the affidavit that, in his experience, “drug
dealers ordinarily keep their drugs, the proceeds of drug sales, and financial records related
to their business in their residences.” Id. Noting that the probable cause determination of
a neutral and detached magistrate should be given great deference by a reviewing court, our
supreme court concluded that “the facts contained in the application for the search warrant

                                               -5-
established a substantial basis on which the magistrate could conclude that evidence of Mr.
Saine’s drug trafficking would be found inside his residence.” Id. at 207. Therefore, our
supreme court overruled this court’s opinion and reversed the trial court’s suppression of
evidence found during the search of Saine’s residence. Id.

        We, like the parties and the trial court, fail to see how the case before us is
distinguishable from Saine.1 The affidavit supporting the instant search warrant alleged that
the confidential informant called the defendant to arrange to purchase drugs. Police observed
the defendant on the telephone with the confidential informant. After the call, the defendant
immediately went to his residence before leaving to sell drugs to the confidential informant,
supporting the inference that the defendant needed to obtain the drugs from his residence
before meeting with the confidential informant. Additionally, as in Saine, the detective
making the affidavit asserted that in his experience as a law enforcement officer, drug dealers
often keep documents, monies, and contraband relating to drug transactions in their
residences. Accordingly, based upon the case law established by our supreme court in Saine,
we are compelled to reverse the trial court’s ruling that the search warrant was invalid and
the trial court’s subsequent suppression of the evidence found during a search of the
residence.

                                               III. Conclusion

      The judgment of the trial court is reversed, and the case is remanded for further
proceedings.

                                                              ___________________________________
                                                              NORMA McGEE OGLE, JUDGE




        1
           In his brief, the defendant “submits that the issue in this case is virtually identical to that presented
in Saine, and compels the same result.”

                                                        -6-
