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10/26/95 STATE TENNESSEE v. LANDON GAW

COURT OF CRIMINAL APPEALS OF TENNESSEE, AT NASHVILLE


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 affidavit is measured by a two-pronged test:

(1) whether the affidavit contains the basis of the informant's knowledge; and

(2) whether the affidavit includes a factual allegation that the informant is credible or the information is reliable.

State v. Jacumin, 778 S.W.2d 430, 432 and 436 (Tenn. 1989); see Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964); and Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969).

In Aquilar, the United States Supreme Court held that a search warrant was improvidently issued by the magistrate because the affidavit did not contain any underlying circumstances indicative of illegal activity or any facts disclosing the credibility of the informant or the reliability of the information given. 378 U.S. at 114. Although the United States Supreme Court no longer employs the Aquilar-Spinelli test, our supreme court has determined that the test, "if not applied hypertechnically, provides a more appropriate structure for probable cause inquiries incident to the issuance of a search warrant ... [and] is more in keeping with the specific requirement of Article I, Section 7 of the Tennessee Constitution...." State v. Jacumin, 778 S.W.2d at 436.

The trial Judge's findings of fact on a motion to suppress are conclusive on appeal unless the evidence preponderates otherwise; State v. Tate, 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981). The only testimony at the hearing on the motion to suppress was provided by the defendant Nail. He claimed exclusive entitlement to his room. He maintained that he had arranged to pay rental and had a separate lock on the door. The trial court accredited that testimony but based its ruling upon inadequate factual allegations in the search warrant.

A conclusory allegation of reliability is insufficient to satisfy the veracity prong. Spinelli v. United States, 393 U.S. at 412. The affidavit must include specific underlying circumstances. In State v. Moon, 841 S.W.2d 336, 337 (Tenn. Crim. App. 1992), this court found an affidavit to be inadequate when the informant, who claimed to have seen marijuana on the premises to be searched, was described only as "a reliable person who has given information against his penal [interest] and in this case has given information that affiant has checked and found to be correct." (Bracketed change in original).

The affidavit here is very similar. The only significant difference is that the informant told the investigating officer "prior to the ... purchase that he would be able to buy marijuana from Landon Gaw." Obviously, that contributed little to his level of veracity.

The affidavit in this case contained no hint of whether the officer had corroborated the purchase of the contraband drug or had acquired any specific information which might otherwise substantiate either the credibility of the informant or the reliability of his accusations. The issuing magistrate had nothing more than the judgment of the officer in assessing the reliability of the information. To allow a "conclusory affidavit to stand violates the principles of Aguilar [and] Spinelli...." State v. Stephen Udzinski, Jr., 1993 Tenn. Crim. App. LEXIS 773, No. 01C01-9212-CC-00380 (Tenn. Crim. App., at Nashville, November 18, 1993); cf., Woods v. State, 552 S.W.2d 782 (Tenn. Crim. App. 1977).

In short, some facts had to be alleged which reflected upon the accuracy of the informant's assertions. The Conclusions reached by the investigating officer and included in the affidavit were not enough to satisfy the state constitutional standard.

Next, the state asserts that the trial court erred in its determination that the defendant Nail occupied an "exclusive, separate entity within the residence." It claims that there was insufficient proof to establish that there was any rental agreement or that Nail had exclusive control over his room. We view this as an argument that Nail had no standing to challenge the validity of the search warrant.

One who challenges the reasonableness of a search or seizure has the initial burden of establishing a legitimate expectation of privacy in the place or property searched. Rawlings v. Kentucky, 448 U.S. 98, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980); see also State v. Roberge, 642 S.W.2d 716 (Tenn. 1982). Our court has recognized that "an individual may have such a legitimate expectation of privacy in another person's residence." State v. Turnbill, 640 S.W.2d 40, 45 (Tenn. Crim. App. 1982); see Rakas v. Illinois, 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978). A failure on the part of the state to raise the issue of standing at trial serves as a waiver of the issue on appeal. State v. White, 635 S.W.2d 396 (Tenn. Crim. App. 1982); State v. Layne, 623 S.W.2d 629 (Tenn. Crim. App. 1981).

In United States v. Haydel, 649 F.2d 1152, 1154-55 (5th Cir. 1981), the United States Court of Appeals listed seven factors applicable to the standing inquiry:

(1) property ownership;

(2) whether the defendant has a possessory interest in the thing seized;

(3) whether the defendant has a possessory interest in the place searched;

(4) whether he has a right to exclude others from that place;

(5) whether he has exhibited a subjective expectation that the place would remain free from governmental invasion;

(6) whether he took normal precautions to maintain his privacy; and

(7) whether he was legitimately on the premises.

Id. This court utilized those factors in State v. Woods, 806 S.W.2d 205 (Tenn. Crim. App. 1990).

There was evidence that the defendant Nail was legitimately present, claimed exclusive possession of his room, and refused to consent to a search. Implicit in the ruling of the trial court was the fact that Nail had established a reasonable expectation of privacy in his room and, therefore, had standing to challenge the validity of the search warrant. The state had offered no countervailing evidence at the suppression hearing. Because the proof offered at the suppression hearing does not preponderate against the findings of the trial court, we must conclude that the defendant had the right to question the search warrant.

Accordingly, the judgment is affirmed.

Gary R. Wade, Judge

CONCUR:

John H. Peay, Judge

Rex H. Ogle, Special Judge


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