Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs February 19, 2015
Appeal from the Criminal Court for Knox County No. 98987A Bob R. McGee, Judge
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Tracy Dale Tate
Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Phillip H. Morton and Hector Sanchez, Assistant District Attorneys General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.
D. KELLY THOMAS, JR., JUDGE
On February 21, 2011, the Defendant was charged in a four-count indictment with the following: sale of .5 grams or more of cocaine within 1, 000 feet of an elementary school (count 1); delivery of .5 grams or more of cocaine within 1, 000 feet of an elementary school (count 2); sale of .5 grams or more of cocaine within 1, 000 feet of a recreational center (count 3); and delivery of .5 grams or more of cocaine within 1, 000 feet of a recreational center (count 4). The case proceeded to trial where the following evidence was presented.
Sergeant Josh Shaffer with the Knoxville Police Department ("KPD") testified that he worked in the Repeat Offender Squad, which conducted investigations into "street level drug dealing." He testified that in December 2009, he was investigating a two or three block area in the Mechanicsville neighborhood, which was the source of "numerous, numerous complaints from the citizens." In particular, the police were investigating a house located on Cansler Avenue for suspected crack cocaine sales. Patrol officers had noticed that occupants of the house were "posting up" on the front porch. Sergeant Shaffer explained that "posting up means standing out somewhere visible where potential drug customers can see you, and you all can make eye contact and conduct a quick drug transaction."
Sergeant Shaffer testified that he arranged for an informant, Glen Palmer, to make an undercover purchase of drugs at the Cansler Avenue house. Sergeant Schaffer had worked with Mr. Palmer since 2007, and Mr. Palmer's previous undercover purchases had led to several arrests and successful prosecutions. According to Sergeant Shaffer, informants were routinely compensated for their work with the police, and Mr. Palmer was paid for his work in the instant case. Sergeant Shaffer acknowledged that Mr. Palmer was a former drug addict and that he had charges pending at the time he began working as an informant in 2007. According to Sergeant Shaffer, Mr. Palmer received "help" on his charges in exchange for his undercover work with the police, but at the time of the undercover operation in the instant case, he had no charges pending.
Sergeant Shaffer explained that on December 30, 2009, the KPD began surveilling the Cansler Avenue area "to begin getting eyes on to [sic] see what was happening at [the house] to see if there was activity, to see if there was potential drug dealing going on . . . ." He met with Mr. Palmer to "set the parameters" for the buy, which included instructions to "go directly" to the house; "walk directly back"; "don't vary from it"; "don't talk to other people"; and "don't meet other people." Sergeant Shaffer searched Mr. Palmer to ensure that he had no contraband, money, or weapons on his person and then outfitted him with a recording device and transmitter so that officers could monitor the transaction. He explained that other officers were in the area conducting surveillance "just in case something happened [so] that we could get in and protect the informant . . . ." Additionally, one officer utilized a video camera to record the transaction.
Sergeant Shaffer provided Mr. Palmer with $120, with instructions that he should first attempt to purchase forty dollars worth of crack cocaine and that, if the initial transaction was successful, then Mr. Palmer should "attempt to make the whole purchase of [$]120, which [was] what occurred." Sergeant Shaffer made a copy of the money he provided to Mr. Palmer so that the serial numbers could be tracked. The plan was to drop Mr. Palmer off "about one block south and one block over" from the suspect house. Sergeant Shaffer explained that the officers involved in this particular undercover buy were well-known in the neighborhood; thus, they needed to drop the informant far enough away that no one would see the informant exiting a vehicle driven by a police officer. He testified that officers "had constant eyes on [Mr. Palmer] at all times."
Glen Palmer testified that he had a history of addiction to crack cocaine but that he eventually decided to "try to cut [his] ties to that community" and get help for his addiction. He first met Sergeant Shaffer through another officer and began working as a confidential informant, which led to the State's dropping of drug-related charges that were pending at the time.
Mr. Palmer testified that he was familiar with the house on Cansler Avenue because he had purchased drugs there in the past. On December 30, 2009, Sergeant Shaffer called him and asked whether he wanted to make an undercover purchase, to which Mr. Palmer agreed. He met Sergeant Shaffer who searched him and outfitted him with a wire microphone. The officers set up surveillance and dropped him off with money. He testified ...