        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                August 11, 2015 Session

           STATE OF TENNESSEE v. WILLIAM GARY MOSLEY

              Direct Appeal from the Circuit Court for Marion County
                      No. 9779B    Thomas W. Graham, Judge



               No. M2014-02533-CCA-R3-CD – Filed January 26, 2016



The appellant, William Gary Mosley, pled guilty in the Marion County Circuit Court to
initiation of a process intended to result in the manufacture of methamphetamine, a Class
B felony, and two counts of possession of drug paraphernalia, a Class A misdemeanor,
and reserved a certified question of law concerning the sufficiency of the affidavit
underlying the search warrant issued in this case. Based upon the oral arguments, the
record, and the parties‟ briefs, we conclude that the affidavit failed to establish probable
cause for the search warrant. Therefore, the judgment of the trial court is reversed, the
appellant‟s convictions are vacated, and the charges are dismissed.

 Tenn. R. App. 3 Appeal as of Right; Judgments of the Circuit Court are Reversed
                                  and Vacated.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

M. Keith Davis, Dunlap, Tennessee, for the appellant, William Gary Mosley.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
J. Michael Taylor, District Attorney General; and David McGovern, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       This case relates to a search of the appellant‟s home on March 12, 2014. Earlier
that day, Detective Matt Blansett of the Marion County Sheriff‟s Department (MCSD)
submitted an affidavit in which he listed the following as the “factual basis supporting
probable cause” for issuance of a search warrant for the residence:

             1. The affiant received information from Christopher Lee
             Trussell that he has been buying pseudoephedrine pills and
             taking them to William Gary Mosley at 406 Elm. Ave in
             South Pittsburg, Tn.

             2. Trussell states that he has taken Mosley pills on several
             times for Mosley to use to manufacture methamphetamine.

             3. Trussell would take Mosley the Pills in exchange for
             methamphetamine or Mosley would pay Trussell $75.00 to
             $100.00 [for] each box of pills. If Trussell wanted money
             instead of methamphetamine Mosley would make him wait
             until he was finish with the cook to pay him.

             4. Trussell states that Mosley starts the cook inside of the
             residence and then finishes the process in the out building.

             5. Trussell states the Mosley leaves tubbing [sic] and other
             item under the out building and also keep mason jars and
             other items inside the bedroom in the mobile home;

             6. Detectives have verified the purchases Trussell made
             through the National Precursor log exchange database.
             Showing that the information that Trussell is giving is true
             and correct.

             7. It is anticipated through the corporation of Chris Trussell
             law enforcement has arranged for Trussell to make a
             controlled delivery of pseudoephedrine pills a precursor
             ingredient to Mosley at his residence at 406 Elm Ave.
             Officers will have constant surveillance of Chris Trussell to
             and from the residence.

             8. As soon as Trussell leaves the residence officers will
             verify that no one has left the residence other than Trussell at
             that time officers will secure the residence and the search will
             take place.

                                           -2-
Based on the information contained in the affidavit, Judge Mark Raines granted Detective
Blansett‟s request for a search warrant.

       During the search of the appellant‟s home, officers found various materials and
equipment used in the manufacture of methamphetamine. In June 2014, the Marion
County Grand Jury indicted the appellant and his girlfriend for initiating a process
intended to result in the manufacture of methamphetamine, promotion of the manufacture
of methamphetamine, two counts of possession of one-half gram or more of
methamphetamine within a drug-free school zone, and two counts of aggravated child
abuse or neglect under “Haley‟s law.”

       The appellant filed a motion to suppress all the evidence on the basis that
Detective Blansett‟s affidavit failed to establish probable cause for the warrant. In
support of his motion, the appellant alleged that officers never conducted controlled buys
from the residence prior to applying for the warrant; did not conduct any surveillance of
the home prior to applying for the warrant; misled the issuing judge in that Trussell‟s
most recent purchase of pseudoephdrine had occurred on February 5, 2014, several weeks
before Detective Blansett applied for the warrant; and never checked the National
Precursor Log Exchange prior to applying for the warrant to determine if the appellant
had purchased pseudoephdrine. The appellant also alleged that officers had never used
Trussell as an informant prior to this case, had “little” information about him, and failed
to corroborate the information he provided prior to obtaining the warrant.

        At the suppression hearing, Detective Blansett testified that he had been employed
by the MCSD for eleven years and had investigated more than one hundred
methamphetamine laboratories. He stated that he had taken a forty-hour certification
class on methamphetamine labs and that he was recertified every year. Detective
Blansett said methamphetamine “cooks” often did not want their names on the
pseudoephedrine registry. Therefore, they had “buyers” purchase the pseudoephedrine
pills for them and gave the buyers the finished product in exchange for the pills. If the
buyers preferred money, the cooks paid them $50 to $70 for a box of pseudoephedrine.

       Detective Blansett testified that he learned about the appellant from Detective
Nathan Billingsley and “was advised an anticipatory search warrant would be the best
way to handle the situation.” The trial court asked why the police needed to obtain the
search warrant prior to the actual drug transaction between Trussell and the appellant, and
Detective Blansett answered, “Just the other investigators I‟d spoken to with the TBI and
also other investigators at the sheriff‟s department advised that [an] anticipatory search
warrant using him in the role as a witness and delivering pseudoephedrine would be the
best way to write the warrant.” After Detective Blansett obtained the search warrant, he
searched Trussell and Trussell‟s vehicle at a boat dock in South Pittsburg. Detective
                                           -3-
Blansett then gave psuedoephedrine pills to Trussell, and Trussell went to the appellant‟s
home.

       Detective Blansett testified that Trussell entered the residence and traded the pills
for a small bag of methamphetamine. Trussell came out of the appellant‟s home, and
Detective Blansett spoke with Trussell on the telephone. Trussell advised Detective
Blansett that “the deal went down and he had a small bag of meth.” At that point,
Detective Blansett executed the search warrant. Meanwhile, Trussell returned to the boat
dock, and another detective retrieved the methamphetamine from him. Detective
Blansett said that he had not seen the bag of methamphetamine and that Trussell had not
yet turned over the bag of methamphetamine when officers entered the appellant‟s home
to execute the warrant.

       On cross-examination, Detective Blansett testified that he had never met or even
heard of Trussell prior to this case. He acknowledged that he did not perform a
background check on Trussell prior to obtaining the search warrant and that a background
check would have revealed that Trussell pled guilty to a “methamphetamine charge” on
March 5, 2014. Detective Blansett also acknowledged that he did not check the
pseudoephedrine database for the name of the appellant or the appellant‟s girlfriend.
Detective Blansett checked the database for Trussell‟s name and learned that Trussell had
purchased seven boxes of pseudoephedrine since May 4, 2011. However, Detective
Blansett did not include that information in his affidavit. He acknowledged that
pseudoephedrine was a legal product, that a person could buy it without a prescription,
and that the purchase of the psuedoephedrine alone did not create probable cause.

       Detective Blansett testified that no one ever mentioned Trussell‟s reliability to
him, and he acknowledged that the only evidence he had that the appellant was
manufacturing methamphetamine was the information provided by Trussell. Regarding
his corroboration of Trussell‟s information, he stated, “After we executed the search
warrant, yes, we corroborated it.” However, he did not corroborate any of the
information prior to obtaining the warrant. Detective Blansett had not conducted any
surveillance of the appellant‟s home and had not conducted any undercover buys from
the appellant prior to obtaining the warrant, and Trussell did not wear a wire into the
home. Detective Blansett acknowledged that by the time Trussell got from the
appellant‟s house to the boat dock, officers had already entered the appellant‟s residence.
He said, though, that prior to the entry, he confirmed in a telephone conversation with
Trussell that Trussell had obtained methamphetamine. At the time of the suppression
hearing, the material obtained by Trussell had not yet been confirmed as
methamphetamine.



                                            -4-
       During redirect examination, the trial court commented, “I‟m not sure why there
was any need for super speed here. This is where [the appellant] lives. He‟s not, -- I
assume he‟s been there a long time. It‟s not like it‟s a mobile home or some transient
place[.]” Detective Blansett responded, “The way it was explained to me was the reason
you do it like this was to assure that you get the product that you delivered into the house
back before it‟s [disposed] of.” Detective Blansett acknowledged that during the search,
the police obtained the pseudoephedrine that Trussell had delivered.

       Officer Nathan Billingsley of the South Pittsburg Police Department testified that
Trussell went to Officer Billingsley‟s “chief” with information about the appellant‟s
manufacturing methamphetamine at the appellant‟s residence. Trussell had been
convicted of a drug charge about a week earlier, and the police did not have an agreement
with him in exchange for his information about the appellant. Officer Billingsley said
that he knew Trussell‟s father and “knew of” Trussell and that he thought Trussell was
reliable because “[b]asically just talking to him when he came by the police department. I
mean, the information he was giving me seemed to be pretty reliable.” Officer
Billingsley did not check Trussell for outstanding warrants or a criminal history. Trussell
showed Officer Billingsley some text messages between Trussell and the appellant about
“prior encounters between the two of them.” The messages referred to “building a
house,” which Trussell claimed was a code he and the appellant used when the appellant
“needed some product to cook methamphetamine.”

       The trial court asked Detective Billingsley why he did not apply for the search
warrant himself, and Detective Billingsley testified, “I had never done a search warrant
before and Detective Blansett was the one that was going to help me with the search
warrant.” After Detective Blansett obtained the warrant, Detective Billingsley and
Detective Blansett watched Trussell enter and leave the appellant‟s residence. Detective
Billingsley also was present when Trussell advised Detective Blansett that “he did have
the product.” Trussell got into his truck and drove away, and another officer followed
Trussell back to the boat dock.

        On cross-examination, Detective Billingsley acknowledged that he had been
working in law enforcement about twelve years. Two or three days before the search
warrant was issued, Detective Billingsley had a “long” interview with Trussell. However,
after the interview, the police did not conduct surveillance on the appellant‟s home or
check the pseudoephedrine database for the appellant‟s name. Detective Blansett also
met with Trussell a day or two before the warrant was issued. Thus, Detective Blansett
received the information directly from Trussell and typed the search warrant.

      At the conclusion of the hearing, the trial court requested that the parties “brief”
whether Trussell was a citizen informant or a criminal informant because “criminals are
                                            -5-
inherently not reliable.” The trial court also requested that the parties address whether
the affidavit contained a “triggering event” that established probable cause to issue the
anticipatory warrant.

        In the appellant‟s post-hearing memorandum of law, he argued that Trussell was a
criminal informant and, therefore, that the affidavit used to obtain the search warrant had
to satisfy the knowledge and reliability prongs set out in State v. Jacumin, 778 S.W.2d
430, 432 (Tenn. 1989). The appellant argued that the affidavit in this case failed to
satisfy both prongs of Jacumin and contained factual allegations about Trussell‟s
purchase of pseudoephedrine that were misleading because the affidavit failed to reveal
that Trussell had purchased only seven boxes of pseudoephedrine pills since May 4,
2011. Finally, the appellant argued that the affidavit for the search warrant failed to
establish probable cause because it simply alleged that Trussell would deliver a legal
product, pseudoephedrine, to the appellant‟s home and did not allege that Trussell would
receive cash or drugs for the delivery. In response, the State argued that the evidence
presented at the suppression hearing failed to establish that Trussell “wasn‟t a citizen
informant”; that the affidavit was not misleading; and that an informant‟s delivery of the
pseudoephedrine alone, in a case involving methamphetamine, established probable
cause for an anticipatory search warrant.

        In a written order, the trial court denied the appellant‟s motion to suppress, stating
as follows:

                      The Defendant moved to suppress the evidence
              obtained as a result of the search warrant due to the failure of
              the affidavit to establish the reliability of the informant. The
              State says the informant was a citizen informant whose
              reliability is presumed.

                     ....

                       Having reviewed the affidavit subject to this motion,
              this Court concludes the informant is a criminal informant
              whose basis of knowledge is clearly contained in the
              affidavit.     The Court further finds that the criminal
              informant‟s reliability is sufficiently established by the
              corroboration of the detectives who discovered multiple
              pseudoephedrine purchases by the informant as recorded in
              the . . . National Precursor Log Exchange database.



                                             -6-
       On December 16, 2014, the appellant pled guilty in count one to initiation of a
process to manufacture methamphetamine, a Class B felony, and in counts two and four
to possession of drug paraphernalia, a Class A misdemeanor. The remaining charges
were dismissed. As a condition of the pleas, he reserved the following certified questions
of law:

                 1. Whether the affidavit used to obtain the search warrant at
                 issue failed to establish the requisite probable cause necessary
                 for the issuance of a search warrant as required by the 4th and
                 14th Amendments to the United States Constitution and
                 Article I sections 7 and 8 of the Tennessee Constitution?

                 2. Whether the affidavit used to obtain the search warrant at
                 issue in this case contained factual allegations which were
                 materially misleading?

                 3. Whether the trial court properly determined that the
                 affidavit used to obtain the search warrant at issue contained
                 allegations which sufficiently corroborated the information
                 provided by the criminal informant when there was no
                 allegation that the information was reliable?

                 4. Whether the trial court properly denied the Defendant‟s
                 motion to suppress all of [the] evidence obtained as the result
                 of the search of his home?

Pursuant to the plea agreement, the appellant received an eight-year sentence in count one
to be served as six months in jail and the remainder on supervised probation. 1 In count
two, he received a sentence of eleven months, twenty-nine days in confinement, and in
count four, he received a sentence of eleven months, twenty-nine days to be served as
nine months in confinement and three months on unsupervised probation. Both of the
misdemeanor sentences were to be served consecutively to each other and the felony
sentence.

                                              II. Analysis

       On appeal, the appellant contends that the affidavit used to obtain the search
warrant failed to establish probable cause because it failed to include any information
regarding Trussell‟s reliability, failed to allege sufficient facts to corroborate Trussell‟s

       1
           At the time of the plea hearing, the appellant had already served six months in confinement.
                                                      -7-
information, and was materially misleading in that it failed to disclose that Trussell had
purchased only seven boxes of pseudoephedrine in the three years preceding the issuance
of the warrant. The State argues that the trial court properly denied the appellant‟s
motion to suppress. We conclude that the affidavit failed to establish probable cause.

       As noted above, this appeal comes via properly preserved certified questions under
Tennessee Rule of Criminal Procedure 37(b)(2). See State v. Armstrong, 126 S.W.3d
908, 912 (Tenn. 2003); State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The issue it
presents is dispositive. See State v. Oliver, 30 S.W.3d 363, 364 (Tenn. Crim. App.
2000). Although we are analyzing certified questions, we use the same standard of
review as we would to analyze the underlying issue: the denial of a motion to suppress.
See State v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009).

        In reviewing a trial court‟s determinations regarding a suppression hearing,
“[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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court‟s findings
of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” Id. Nevertheless, appellate courts will review both questions of law and the
trial court‟s application of law to the facts purely de novo. See Hanning, 296 S.W.3d at
48; State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the State, as the
prevailing party, 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.” Odom, 928 S.W.2d at 23.

       Our supreme court has explained that

              [t]he Fourth Amendment to the United States Constitution
              requires that search warrants issue only “upon probable cause,
              supported by Oath or affirmation.” Article I, Section 7 of the
              Tennessee Constitution precludes the issuance of warrants
              except upon “evidence of the fact committed.” Therefore,
              under both the federal and state constitutions, no warrant is to
              be issued except upon probable cause. Probable cause has
              been defined as a reasonable ground for suspicion, supported
              by circumstances indicative of an illegal act.

State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998) (footnote and citations omitted). In
this state, “a finding of probable cause supporting issuance of a search warrant must be
based upon evidence included in a written and sworn affidavit.” Id. Specifically, “[i]n
order to establish probable cause, an affidavit must set forth facts from which a
                                            -8-
reasonable conclusion may be drawn that the contraband will be found in the place to be
searched pursuant to the warrant.” State v. Norris, 47 S.W.3d 457, 470 (Tenn. Crim.
App. 2000). We note that “„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)).

       “An affidavit may include hearsay information supplied by a confidential
informant as a basis to establish probable cause[, but if] the hearsay information is
supplied by a criminal informant or a person from a „criminal milieu,‟ we apply a two-
prong test in determining the reliability of the information.” State v. Smotherman, 201
S.W.3d 657, 662 (Tenn. 2006) (citing State v. Williams, 193 S.W.3d 502, 507 (Tenn.
2006)). In Jacumin, our supreme court espoused the two-pronged Aguilar-Spinelli test
“as the standard by which probable cause will be measured to see if the issuance of a
search warrant is proper under Article I, Section 7 of the Tennessee Constitution.” 778
S.W.2d at 436; see Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378
U.S. 108 (1964). Specifically, “hearsay information supplied by a confidential informant
can not support a finding of probable cause unless it also contains factual information
concerning the informant‟s basis of knowledge and credibility.” Henning, 975 S.W.2d at
294-95 (citing Jacumin, 778 S.W.2d at 432, 436).

       This court has explained that “under the . . . „basis of knowledge‟ prong, facts
must be revealed which permit the magistrate to determine whether the informant had a
basis for his information or claim regarding criminal conduct.” State v. Lowe, 949
S.W.2d 300, 304 (Tenn. Crim. App. 1996); see also State v. Moon, 841 S.W.2d 336, 338
(Tenn. Crim. App. 1992). The reliability, veracity, or credibility prong deals with the
truthfulness of the informant in which “facts must be revealed which permit the
magistrate to determine either the inherent credibility of the informant or the reliability of
his information on the particular occasion.” Moon, 841 S.W.2d at 338. Courts have
stressed that conclusory statements absent supportive detail will not suffice to establish
these requirements. See id. at 339. However, “independent police corroboration of the
information provided by the informant may make up deficiencies in either prong.” State
v. Powell, 53 S.W.3d 258, 263 (Tenn. Crim. App. 2000). “The requisite volume or detail
of information needed to establish the informant‟s credibility is not particularly great.”
Lowe, 949 S.W.2d at 305. Nevertheless, “the affiant must provide some concrete reason
why the magistrate should believe the informant.” Id.

       Here, the trial court found, and the State does not dispute, that the information
contained in the affidavit came from a criminal informant; therefore, the affidavit had to
satisfy both prongs of Jacumin. Although the trial court expressed concern about the
validity of the search warrant throughout the suppression hearing, the court did not
                                             -9-
explain in its order why it found a basis of knowledge or reliability for Trussell‟s
information. The appellant challenges only the second prong regarding Trussell‟s
reliability.2

       The State contends that Trussell‟s reliability was corroborated by Detective
Blansett‟s check of the pseudoephedrine database, which confirmed that Trussell had
purchased pseudoephedrine, and by Trussell‟s giving the police detailed information
about the appellant‟s “„leaving tubing and other items under the outbuilding and also
keeps mason jars and other items inside the bedroom in his mobile home.‟” We disagree
with the State. To put it bluntly, the affidavit for the search warrant in this case provided
absolutely no basis for Trussell‟s reliability or credibility. Although Trussell stated that
he had purchased pseudoephedrine for the appellant, Detective Blansett‟s check of the
pseudoephedrine database confirmed only that Trussell had bought pseudoephedrine. It
did not confirm that Trussell did so for the appellant, that he delivered the drug to the
appellant, or that he received cash or methamphetamine from the appellant. Likewise,
Trussell‟s telling the detectives about the location of items used to manufacture
methamphetamine at the appellant‟s home did nothing to show Trussell was reliable or
credible when the officers did not confirm that his information was correct. We note that
Detective Blansett testified at the suppression hearing that he did not corroborate any of
the information provided by Trussell until after he had executed the search warrant. Thus,
the affidavit failed to satisfy the reliability prong of Jacumin and failed to establish
probable cause.

       As to the appellant‟s claim that the affidavit was materially misleading, we note
that the trial court did not expressly address the issue. In any event, the trial court found
that the search warrant was valid. An affidavit that contains false or misleading
information, though, may invalidate a search warrant. State v. Little, 560 S.W.2d 403,
407 (Tenn. 1978). In Little, our supreme court held that “there are two circumstances
that authorize the impeachment of an affidavit sufficient on its face, (1) a false statement
made with intent to deceive the Court, whether material or immaterial to the issue of
probable cause, and (2) a false statement, essential to the establishment of probable cause,
recklessly made.” This court has observed that the same rationale of the Little test
extends to material omissions in an affidavit. See State v. Yeomans, 10 S.W.3d 293, 297
(Tenn. Crim. App. 1999). “However, an affidavit omitting potentially exculpatory
information is less likely to present a question of impermissible official conduct than one
which affirmatively includes false information.” Id. The appellant bears the burden of


        2
          The State contends that the affidavit satisfied the basis of knowledge prong by stating that
Trussell had told police that he had been buying pseudoephedrine pills for the appellant, delivering them
to the appellant‟s home, and exchanging them for cash or methamphetamine. The appellant “reluctantly
concede[s]” that the affidavit adequately established the basis of knowledge for Trussell‟s information.
                                                    - 10 -
establishing the allegation of perjury or reckless disregard by a preponderance of the
evidence. Id.

        The appellant claims that the affidavit was “extremely misleading” because it
failed to advise the issuing court that Trussell had purchased pseudoephedrine only seven
times since May 4, 2011, or that Trussell‟s last purchase of pseudoephedrine had
occurred on February 5, 2014, five weeks prior to the search at issue. We disagree with
the appellant. The affidavit stated that Trussell claimed he had taken pseudoephedrine
pills to the appellant on “several” occasions and that a check of the pseudoephedrine
database confirmed that Trussell had purchased pseudoephedrine seven times. Moreover,
although Trussell had last purchased pseudoephedrine five weeks before Detective
Blansett applied for the search warrant, five weeks was not particularly remote in time.
Therefore, while we agree that the affidavit lacked sufficient information to establish
probable cause for the search warrant, we conclude that the appellant has failed to show
that the specific statement at issue invalidated the warrant.

                                     III. Conclusion

       Based upon the oral arguments, the record, and the parties‟ briefs, the trial court‟s
denial of the appellant‟s motion to suppress is reversed. His convictions are vacated, and
the charges are dismissed.


                                                    _________________________________
                                                    NORMA MCGEE OGLE, JUDGE




                                           - 11 -
