        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  March 10, 2015 Session

              STATE OF TENNESSEE v. JERRY LEWIS TUTTLE

                   Appeal from the Circuit Court for Maury County
                   Nos. 22091, 21695      Stella L. Hargrove, Judge




               No. M2014-00566-CCA-R3-CD – Filed September 8, 2015



ROGER A. PAGE, J., dissenting in part and concurring in part.


        I concur with the majority‟s opinion in its affirmation of the trial court‟s forfeiture
order. I respectfully disagree with the majority‟s conclusion that the affidavit supporting
the search warrant was insufficient to establish probable cause. Instead, I would affirm
the trial court‟s denial of appellant‟s motion to suppress and would conclude that the
evidence was sufficient to support appellant‟s convictions.

       In its opinion, the majority concludes that Trooper Boyd recklessly made false
statements. However, the trial court, who heard Trooper Boyd‟s testimony about the
affidavit, ruled that Trooper Boyd‟s statement in paragraph eighteen of the affidavit
concerning the offloading of marijuana at appellant‟s residence was false but was not
intended to mislead the court nor was it made recklessly. A trial court is entrusted with
such credibility determinations in a suppression hearing, and this court should be loath to
go behind such determinations. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)
(“Questions about witness credibility and „resolution of conflicts in the evidence are
matters entrusted to the trial judge[.]‟” (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996)). The majority also takes issue with Trooper Boyd‟s statement in the affidavit that
the pinging of Cleto Medina‟s cellular telephone placed him in the same “location” in
April as Christopher Tuttle‟s truck in March. It is clear that Medina and Christopher
Tuttle were both on appellant‟s Dugger Road property, and the term “location,” read in a
common sense fashion, relays that information. State v. Melson, 638 S.W.2d 342, 357
(Tenn. 1982) (“[A]ffidavits must be looked at and read in a commonsense and practical
manner.”) I believe that the majority‟s interpretation of “location” is hypertechnical and
that Trooper Boyd‟s statement was not false. I would uphold the trial court‟s credibility
findings with regard to Trooper Boyd‟s misstatement, and in so doing, I would conclude
that his affidavit was facially valid.

        In addition, I disagree with the majority‟s review of the reliability of Adrian Davis,
the informant who told law enforcement that Christopher Tuttle‟s family was involved in
the drug trafficking. This issue was not presented in the trial court and is therefore
waived. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring
relief be granted to a party responsible for an error or who failed to take whatever action
was reasonably available to prevent or nullify the harmful effect of an error.”). Moreover,
the trial court did not include Adrian Davis‟s statement regarding the Tuttle family‟s
involvement in its determination that a sufficient nexus existed between the criminal
activity and the Tuttle property on Dugger Road.

       The trial court ruled that a sufficient nexus existed between Christopher Tuttle‟s
criminal activity and appellant‟s Dugger Road property based on the information that
Christopher Tuttle and Cleto Medina could be placed on the property at times that law
enforcement knew they were in the process of transacting large-scale drug exchanges. On
March 16, 2012, law enforcement received information that Cleto Medina‟s brother Biato
Jaramillo was traveling to Tennessee with a large quantity of drugs. Christopher Tuttle
met Jaramillo at a gas station, Jaramillo followed him when they left the station, and
Tuttle‟s vehicle was seen shortly thereafter at appellant‟s Dugger Road property. On
April 2, 2012, Christopher Tuttle met Cleto Medina at a gas station, and Medina followed
him when they left the station. Less than thirty minutes later, law enforcement received
information from Cleto Medina‟s cellular telephone that placed Medina on Dugger Road.
I conclude that this information provides a sufficient nexus between the drug trafficking
operation and appellant‟s property on Dugger Road. The nexus to appellant‟s residence
comes from Trooper Boyd‟s assertion in his affidavit that in his experience drug dealers
will often keep evidence of their trafficking not only in their own homes but also in
residences to which they have access. It is reasonable to infer that Christopher Tuttle had
access to his father‟s residence. Thus, “the magistrate had a substantial basis for
concluding that a search warrant would uncover evidence of wrongdoing” at appellant‟s
residence. See State v. Jacumin, 778 S.W.2d 430, 432 (Tenn. 1989). “The finding of
probable cause by the issuing magistrate is entitled to great deference.” Melson, 638
S.W.2d at 357. Accordingly, I would affirm the trial court‟s denial of appellant‟s motion
to suppress and uphold its judgments in all respects.

                                                         ___________________________
                                                         ROGER A. PAGE, JUDGE


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