            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

               STATE OF TENNESSEE v. CEDRIC RURON SAINE

                              Criminal Court for Davidson County
                                       No. 2006-B-1714


                      No. M2007-01277-CCA-R3-CD - Filed May 29, 2008


                            OPINION ON PETITION TO REHEAR

        The State of Tennessee has filed a petition requesting this Court to rehear in the opinion filed
on April 4, 2008. In its petition, the State requests that we reconsider our holding that the affidavit
did not contain sufficient facts to establish probable cause to believe that drugs would be found
inside the Defendant’s residence. The State argues that this Court’s opinion is in conflict with a
prior decision of our supreme court and overlooks or misapprehends material facts established by
the evidence.

        In support of its argument, the State relies on State v. Smith, 868 S.W.2d 561 (Tenn. 1994).
In Smith, the defendant’s estranged wife and her two sons were found murdered. 868 S.W.2d at
566-67. As the result of police investigation, the defendant became the prime suspect. Id. at 571.
When the defendant was questioned by police, he informed them that, after leaving the victims, he
went directly to his trailer and his parents’ home. Id. at 572. After obtaining a search warrant, the
police searched the defendant’s trailer for the weapons used in the slayings and any clothing worn
the night of the murder. Id. at 571. The defendant objected to the search, contending that the
affidavit failed to establish probable cause because it did not show a nexus between the evidence
sought and the place to be searched. Id. at 572. Our supreme court rejected the defendant’s
argument, stating that

       [t]he items being sought, murder weapons such as a gun and ice pick/awl, clothing
       worn the night of the killing . . . were of the type kept at one’s residence. It was
       reasonable to conclude that personal items such as these would have been left at
       [d]efendant’s trailer and would remain there.

Id.

       In its petition to rehear, the States strenuously argues that,

       [g]iven the nature of drug trafficking crimes, the penchant of drug dealers to maintain
       their illicit products inside their homes, and the detectives’ observations of the
       [D]efendant’s delivery of the cocaine, it was certainly reasonable for the detectives
       to conclude that evidence of the [D]efendant’s drug trafficking would be found
       inside.

In addition, the State asserts that our supreme court in Smith, “recognized a far lower threshold for
establishing a sufficient nexus between a crime and a place to be searched.” The State further
petitions for a rehearing, arguing that this “Court’s opinion also misapprehends the facts to the extent
that it concludes the connection between the crime and the [D]efendant’s residence [was] based upon
an inference.”

        In our prior opinion, we cited to Smith and other relevant case law and concluded that there
was a lack of substantial nexus between the controlled sale and the premises to be searched. We
reaffirm our conclusion rejecting “a per se rule that if a person is determined by the magistrate to be
a drug dealer, probable cause is shown to search that person’s residence.” See State v. Harvill
Gilbert, No. 01C01-9311-CC-00383, 1995 WL 89697, at *5 (Tenn. Crim. App., Mar. 3, 1995)
(citing State v. Silvestri, 618 A.2d 821, 824 (N.H. 1992)). The facts contained in the affidavit must
provide a sufficient nexus between the crime and the place to be searched. State v. Longstreet, 619
S.W.2d 97, 99 (Tenn. 1981).

        The affidavit here referenced only one controlled sale between the confidential informant and
the Defendant. The affidavit also contained the unconfirmed statement of the confidential informant
that the Defendant sold “various amounts of cocaine.” See State v. Jacumin, 778 S.W.2d 430, 432
(Tenn. 1989) (affidavit must contain sufficient facts to satisfy the two-pronged test of the
confidential informant’s basis of knowledge and credibility of the informant). At no time did anyone
witness criminal activity occurring at the Defendant’s residence.

       In Smith, the crime which the officers were investigating was a homicide. The evidence
sought, among other items, was clothing worn by the Defendant at the time of the homicide.
Obviously, items of clothing are routinely kept at a person’s residence.

        Here, the crime the officers were investigating was selling drugs from the Defendant’s
vehicle. We acknowledge that the affidavit established that the Defendant left his residence, drove
directly to the location where the drug transaction occurred, and then drove directly back to his
residence. In our previously filed opinion, we determined that the facts did not establish probable
cause that illegal drugs or evidence thereof would be found in the Defendant’s residence three days
later when the warrant issued.

        Having carefully considered the arguments set forth in the petition to rehear, we conclude
that the State seeks to reargue matters fully argued previously. Although we understand and
appreciate that the State disagrees with our conclusions, the arguments advanced in the petition for
rehearing were not overlooked in our previous opinion. Rather, we analyzed and considered the
arguments and determined that a lack of a substantial nexus between the controlled sale and the
premises to be searched rendered the search warrant invalid.



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The petition for a rehearing is respectfully denied.

                                               Per Curiam
                                               David H. Welles, Judge
                                               Joseph M. Tipton, Presiding Judge
                                               Jerry L. Smith, Judge




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