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10/26/95 STATE TENNESSEE v. LANDON GAW

October 26, 1995

STATE OF TENNESSEE, APPELLANT,
v.
LANDON GAW, APPELLEE. STATE OF TENNESSEE, APPELLANT,
v.
RONALD WAYNE NAIL, APPELLEE. (CONSOLIDATED ON APPEAL)



PUTNAM COUNTY. Hon. Leon C. Burns, Jr., Judge. (State Appeal).

Gary R. Wade, Judge, Concur: John H. Peay, Judge, Rex H. Ogle, Special Judge

The opinion of the court was delivered by: Wade

In this appeal by the State of Tennessee, the single issue presented for review is whether the trial court erred by ordering the suppression of evidence acquired incident to the issuance of a search warrant. We affirm the judgment of the trial court.

The facts are not in dispute. A warrant was issued authorizing the search of a residence leased by Landon Gaw. The affidavit in support of the search warrant provided, in pertinent part, as follows:

Within the last nine (9) days, a confidential informant has observed marijuana within [the] above described yellow house. Said informant has provided accurate and reliable information in the past to Officer Winfree. Within the last twenty (20) days, said informant has purchased marijuana from Landon Gaw inside the above described yellow house. Said informant told Officer Winfree prior to the above purchase that he would be able to buy marijuana from Landon Gaw.

Officer Winfree has been a police officer for four years. He has received training in the investigation of illegal narcotics. He has participated in numerous investigations involving illegal narcotics. He is familiar with the appearance of marijuana.

Based upon his training and experience, Officer Winfree knows that items related to the sale and distribution of marijuana are often kept at the residences of persons engaged in the sale of marijuana. These items include, but are not limited to, photographs, cash and records, scales and paraphernalia.

(Emphasis added).

As a result of the search, the defendant Gaw was indicted on the following crimes: (1) one count of possession of marijuana with the intent to sell in violation of Tenn. Code Ann. 39-17-417(a); (2) one count of possession of drug paraphernalia with the intent to use it in conjunction with a controlled substance, in violation of Tenn. Code Ann. § 39-17-425(a)(1).

The defendant Nail was indicted for the following offenses: (1) one count of possession of marijuana with the intent to sell, in violation of Tenn. Code Ann. § 39-17-417(a); (2) one count of possession of drug paraphernalia with the intent to use it in connection with a controlled substance in violation of Tenn. Code Ann. § 39-17-417(a)(1); (3) one count of possession of a facsimile of a driver's license in violation of Tenn. Code Ann. § 55-50-601; (4) three counts of possession with intent to sell a Schedule II controlled substance in violation of Tenn. Code Ann. § 39-17-417(a)(4).

Nail was the only witness at the hearing on the motion to suppress. Nail testified that he had resided in Gaw's residence for two to three months *fn1 and was present during the execution of the search warrant. Nail, who would not consent to the search, claimed that he had been allowed to rent a single bedroom within the residence leased by Landon Gaw and had made arrangements to pay rent "for half of what [Gaw] was paying [to lease]...." Nail testified that he had the only key to his room and had told officers he would not give permission to a search.

On cross-examination, Nail testified that he had not yet paid the rent on his room. He testified that his room contained a bed, desk, a dresser, a safe, his cloths, and a few other items. His recollection was that his bedroom door was locked at the time the offices entered the premises. Apparently, Nail informed the officers which bedroom he occupied and which was used by the defendant Gaw. The state presented no proof.

At the Conclusion of the hearing, the trial court ruled that the language contained in the affidavit for the search warrant did not meet the "veracity test." That is, the content had failed to establish the credibility of the confidential informant or the reliability of the information contained therein:

I don't think that this has reached the level of meeting the veracity prong. It's just a Conclusion that he's reliable ...[.] If the whole warrant is bad, then I don't need to necessarily address the issue on Mr. Nail...[.] Mr. Nail is a separate entity there in the household and the warrant did not address itself to Mr. Nail...[.] [The court] would suppress the evidence as to both defendants for those reasons.

Initially, an affidavit is an indispensable prerequisite to the issuance of any search warrant. Tenn. Code Ann. § 40-6-103; State ex rel. Blackburn v. Fox, 200 Tenn. 227, 230, 292 S.W.2d 21, 23 (1956). It must establish probable cause. Tenn. Code Ann. § 40-6-104; Tenn. R. Crim. P. 41(c). Probable cause has been generally defined as a reasonable ground for suspicion, supported by circumstances indicative of an illegal act. See Lea v. State, 181 Tenn. 378, 181 S.W.2d 351 (1944).

The affidavit in the warrant is often based upon information supplied by others. If the information is supplied by a "confidential informant," the adequacy of the ...


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