Assigned on Briefs September 3, 2014
Appeal from the Criminal Court for Madison County No. 13-405 Roy B. Morgan, Jr., Judge
George Morton Googe, District Public Defender; and Jeremy B. Epperson, Assistant Public Defender, for the appellant, Joe Travis Northern, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ., joined.
ALAN E. GLENN, JUDGE
On January 9, 2013, Jackson police officers executed a search warrant at the defendant's residence, where the defendant and a second man, Desmond Jones, were present. Inside the home, the officers found loose marijuana floating in a just-flushed toilet, plastic baggies containing marijuana, a box of plastic sandwich bags, two sets of digital scales with marijuana residue, a marijuana grinder, a marijuana blunt, a police scanner, and a 9- millimeter handgun. The defendant admitted to the officers that the marijuana, digital scales, and police scanner belonged to him but claimed that he used them for his own personal consumption and not for resale. He denied that the weapon was his. The defendant was subsequently charged in a nine-count indictment with two counts of possession of more than one-half ounce of marijuana with the intent to sell/deliver, four counts relating to the possession of a firearm during the commission/attempt to commit a dangerous felony; possession of a firearm by a convicted felon; tampering with evidence; and possession of drug paraphernalia.
At trial, Captain Christopher Wiser of the Jackson Police Department's Gang Enforcement Unit testified that he found in the home a loaded 9-millimeter Ruger P95 handgun in the kitchen in the space between the wall and a kitchen countertop and a set of digital scales, an open box of sandwich bags, a marijuana grinder, a marijuana blunt, and a bag of loose marijuana on the coffee table in the living room. On cross-examination, he agreed that it would not be uncommon for someone who consumed marijuana to have a marijuana grinder or a marijuana blunt in his or her home.
Investigator Rodney Anderson of the Jackson Police Department's Gang Enforcement Unit testified that he found a police scanner in the living room of the home. He said that police scanners can be used by drug dealers both to listen to "police traffic" and to possibly pick up transmissions between the police and a confidential informant who is wearing a "body wire." On cross-examination, he testified that the police scanner was turned off when they arrived to execute their search but that they turned it on and the device was working.
Lieutenant Phillip Kemper of the Jackson Police Department's Gang Enforcement Unit testified that he found a set of black digital scales with marijuana residue under the couch in the living room of the home. He said that digital scales are commonly used by both sellers and buyers of narcotics to ensure that the amount being sold is accurate.
Investigator Sam Gilley of the Jackson Police Department's Gang Enforcement Unit, the case officer in charge of the search, testified he entered the residence to hear a toilet running in a bathroom near the area in which the SWAT Team had just detained the defendant. He said he looked inside, saw marijuana floating on top of the water, and fished it out of the bowl with the net he carried for such purposes. He also saw either a half-gallon or a gallon-sized ziplock bag, with some remnants of marijuana still inside, lying on the floor of the bathroom. Investigator Gilley explained that lower level street dealers typically purchase their supplies of marijuana in either a half-gallon bag, which will hold approximately one-half pound, or in a gallon bag, which will hold approximately one pound. He further testified that he and his officers pulled the toilet off the floor and were able to "plainly see that the marijuana was flushed down the toilet also." They were not, however, able to retrieve the flushed marijuana from the sewer line.
Investigator Gilley testified that he found approximately seven "twisted off baggies" on the coffee table in the living room. He explained that these were common in the drug trade:
[I]f you're selling somebody some marijuana and say they want to buy like a quarter ounce, you'd measure out three and a half, four or five grams of marijuana. You normally throw it on the scale in front of them, throw it on a baggie, tie the baggie up and put it in a little–you ...