Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 21, 2014.
Appeal from the Circuit Court for Maury County No. 21747 Stella L. Hargrove, Judge.
Robin Farber, Columbia, Tennessee, for the appellant, Laquita Monique Hogan.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; T. Michel Bottoms, District Attorney General; and Brent Cooper, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the court, in which D. Kelly Thomas, Jr. J., joined. Jeffrey S. Bivins, J., not participating.
THOMAS T. WOODALL, JUDGE.
Defendant challenges the trial court's finding of probable cause based on the supporting affidavit. As stated in her brief, Defendant has narrowed the issue stated in the reserved certified question of law. Defendant's brief states the issue on appeal as follows: "Whether the nexus between the criminal activity and the place to be searched continued to persist at the time the warrant was issued?" Defendant makes arguments in the argument section of her brief regarding the other components of the certified question, that the affidavit fails to establish a nexus between the alleged criminal activity and the location to be searched, and that the affidavit fails to satisfy either prong of the Aguilar-Spinelli test, being veracity and basis of knowledge. Defendant's precise statement of the issue on appeal, however, pertains only to whether the nexus persisted. The State responds that the trial court properly denied Defendant's motion to suppress. Despite Defendant's failure to precisely state the entire reserved question of law, we will address the issues raised in the certified question of law and properly argued on appeal.
We will uphold a trial court's findings of fact at a suppression hearing unless the evidence preponderates to the contrary. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). "Questions 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." Id. "We afford to the party prevailing in the trial court the strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that evidence." State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). We review, however, a trial court's application of the law to the facts under a de novo standard of review. State v. Williams, 185 S.W.3d 311, 315 (Tenn. 2006).
Under both the Tennessee and United States Constitutions, no search warrant may be issued except upon probable cause, which "requires reasonable grounds for suspicion, supported by circumstances indicative of an illegal act." State v. Smotherman, 201 S.W.3d 657, 662 (Tenn. 2006). Tennessee requires a written and sworn affidavit, "containing allegations from which the magistrate can determine whether probable cause exists, " as "an indispensable prerequisite to the issuance of a search warrant." State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998). The affidavit must contain more than mere conclusory allegations on the part of the affiant. Id. The standard to be employed in reviewing the issuance of a search warrant is "whether the issuing magistrate had 'a substantial basis for concluding that a search would uncover evidence of wrongdoing.'" Smotherman, 201 S.W.3d at 662 (quoting State v. Ballard, 836 S.W.2d 560, 562 (Tenn. 1992)).
Our supreme court has explained that, in order to establish probable cause for the issuance of a search warrant, the underlying affidavit "must set forth facts from which a reasonable conclusion might be drawn that the evidence is in the place to be searched." State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993) (citations omitted). "The nexus between the place to be searched and the items to be seized may be established by the type of crime, the nature of the items, and the normal inferences where a criminal would hide the evidence." Id. (citation omitted); see also State v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009) (recognizing that an affidavit in support of a search warrant "must show a nexus among the criminal activity, the place to be searched, and the items to be seized") (citing State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002); Smith, 868 S.W.2d at 572)). "In determining whether probable cause supports the issuance of a search warrant, reviewing courts may consider only the affidavit and may not consider other evidence provided to or known by the issuing magistrate or possessed by the affiant." Id. (citing State v.. Carter, 160 S.W.3d 526, 533 (Tenn. 2005)).
Defendant's charges resulted from a search of a residence located at 1611 South High Street in Columbia. At the hearing on Defendant's motion to suppress, defense counsel conceded that Defendant resided at the same address as Jason Coleman and that she was present at the residence when the search warrant was executed. The affiant in the affidavit submitted in support of issuance of the search warrant was Agent David Stanfill of the Maury County Sheriff's Drug Unit. The affidavit states in relevant part as follows:
Statement of Facts in Support of Probable Cause
Within the past 96 hours your Affiant has made a controlled purchase of marijuana from "Jason", aka Jason Coleman. Your Affiant has used a cooperating individual (Known as C.I. from here on) to make several controlled purchases, during the last 30 days, of Marijuana from a B/M known as "Jason", and later identified as Jason Coleman, at the said address. The C.I., during the purchases, was met at a predetermined location where the C.I. and the C.I.'s vehicle were searched for illegal contraband and nothing was found. The C.I. was then fitted with audio and video recording equipment and given buy money to make the purchases. The C.I. was then followed to the Kwik Sak Market, located at West 17th St. and Carmack Blvd. where the sales took place. The C.I. was monitored and was observed during the transactions and was followed back to the predetermined location where the C.I. did turn over a quantity of Marijuana. The C.I. and their vehicle were then searched again and nothing was found. There were two deals done where Officers set up and observed Jason Coleman's residence. Jason Coleman was seen exiting the apartment and go to the Kwik Sak Market and make the sale to the C.I. After the deal was done Jason Coleman was observed returning to the same apartment he had left. Your affiant has made contact with the owner of the residence and confirmed that this is Jason Coleman's residence. The owner states that Jason Coleman rents the apartment and has been staying there for approximately 8 months. Jason leaves the apartment and makes the sale and returns to the same said apartments. Therefore your affiant believes that there will be Narcotics and proceeds from the sales of Narcotics located at the said residence.
At the suppression hearing, the trial court heard arguments of counsel and examined the affidavit. No testimony or other evidence was presented. The trial court denied ...