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State v. Tuttle

Supreme Court of Tennessee, Nashville

April 5, 2017

STATE OF TENNESSEE
v.
JERRY LEWIS TUTTLE

          Session October 5, 2016

         Appeal by Permission from the Court of Criminal Appeals Circuit Court for Maury County Nos. 21695, 22091 Stella L. Hargrove, Judge

         We granted the State's appeal primarily to determine whether the intermediate appellate court erred in finding the search warrant affidavit insufficient to establish probable cause, and in doing so, to revisit the continuing vitality of State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989). In Jacumin, this Court refused to follow Illinois v. Gates, 462 U.S. 213 (1983), which adopted a totality-of-the-circumstances analysis for determining whether an affidavit establishes probable cause for a search warrant, and instead embraced, as a matter of Tennessee constitutional law, another test derived from two earlier United States Supreme Court decisions, Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969). For the reasons explained herein, we overrule Jacumin and adopt the totality-of-the-circumstances analysis for determining whether an affidavit establishes probable cause for issuance of a warrant under article I, section 7 of the Tennessee Constitution. Applying this standard, we reverse the Court of Criminal Appeals' decision holding the search warrant invalid. We also reverse the intermediate appellate court's conclusion that the evidence was insufficient to support the defendant's convictions for conspiracy to possess over 300 pounds of marijuana with intent to sell or deliver and conspiracy to commit money laundering and reinstate the trial court's judgment approving the jury's verdict. Finally, we affirm, on separate grounds, the Court of Criminal Appeals' decision upholding the trial court's judgment ordering forfeiture of the $1, 098, 050 cash seized when the search warrant was executed.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed in Part, Reversed in Part; Judgment of the Trial Court Reinstated

          Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Andrew Craig Coulam, Assistant Attorney General; Brent Cooper, Assistant District Attorney General; T. Michel Bottoms, District Attorney General, for the appellant, State of Tennessee.

          John S. Colley III (at trial and on appeal) and Kevin S. Latta (at trial), Columbia, Tennessee, for the appellee, Jerry Lewis Tuttle.

          Cornelia A. Clark, J., delivered the opinion of the Court, in which Jeffrey S. Bivins, C.J., and Sharon G. Lee and Holly Kirby, JJ., joined. Roger A. Page, J., Not Participating.

          OPINION

          CORNELIA A. CLARK, JUSTICE

         I. Factual and Procedural Overview

         In 2012, the Maury County Grand Jury returned two separate indictments charging the defendant, Jerry Lewis Tuttle, with multiple offenses in connection with a drug trafficking conspiracy. The indictments were issued after officers executed a search warrant on April 24, 2012, for property located at 4571 Dugger Road, Culleoka, Tennessee, in Maury County ("4571 Dugger Road property").[1] The property consisted of "5.77 acres, " and the defendant resided in a mobile home on the property with his wife, Tammy A. Tuttle, who was the record owner of the property.[2] The warrant authorized officers to search the defendant's "single wide mobile home gray in color with an attached wood constructed covered front po[]rch" and "all outbuildings, outhouses and storage buildings, and all vehicles found thereon." Officers were authorized to seize "[m]arijuana, all equipment, devices, records, computers and computer storage discs . . . used for the purpose of producing, packaging, dispensing, delivering or obtaining controlled substances, or recording transactions involving controlled substances, [and] any indicia of ownership, dominion, or control over the premises to be searched . . . ."

         When the warrant was executed, officers found, inside the residence, eight pounds of marijuana, almost a half an ounce of cocaine, and between $95, 000 and $98, 000 cash, in $100 and $50 bills, as well as multiple guns, a large scale capable of weighing items up to thirteen pounds, a small scale capable of weighing items up to two pounds, a money counter, a device used to grind marijuana into a powder, and a pipe and other items associated with smoking marijuana. Just outside the residence in the trunk of the defendant's Honda Civic, officers located a number of additional guns and an ammunition can containing $1, 000, 300 cash, all in $100 bills that were issued prior to the year 2000. Officers also located marijuana plants growing in an Igloo cooler and various items of personal property, including vehicles and farming equipment, believed to be derived from the defendant's involvement in drug trafficking.

         The defendant moved pre-trial to suppress the evidence seized during the search, arguing that the affidavit supporting the search warrant failed to establish probable cause and contained false information. The defendant also moved to dismiss the forfeiture count of the indictment, arguing that the forfeiture was barred by the five-year statute of limitations and by the State's failure to comply with the forfeiture statute. After a hearing on March 19, 2013, the trial court denied the motions.

         The case proceeded to trial, and the jury found the defendant guilty of the following six offenses: (1) simple possession of cocaine in an amount of over .5 grams; (2) possession of marijuana in an amount of not less than one-half ounce nor more than ten pounds with intent to sell; (3) conspiracy to possess over 300 pounds of marijuana with intent to sell or deliver; (4) conspiracy to commit money laundering; (5) money laundering; and (6) unlawful possession of a firearm with intent to go armed during the commission of or attempt to commit a dangerous felony.[3] The day after the jury rendered its verdict, the trial court held a hearing on the forfeiture count of the indictment, Tenn. Code Ann. § 39-11-708(d) (2010), and ordered forfeiture of the cash and other personal property found during the search.[4]

         The defendant appealed, challenging the trial court's ruling on his motion to suppress, the sufficiency of the evidence to support his conspiracy convictions, and the trial court's decision ordering forfeiture of the cash. A majority of the Court of Criminal Appeals reversed the trial court's ruling on the defendant's motion to suppress and vacated the defendant's conspiracy convictions for insufficient evidence but affirmed the trial court's decision ordering forfeiture of the cash.[5] We granted the State's application for permission to appeal.

         Because the issues before us involve facts presented in the affidavit and evidence introduced at separate hearings, we will separately summarize the facts and analyze the law related to each of the following issues: (1) whether the search warrant affidavit sufficiently established probable cause for issuance of the warrant; (2) whether the evidence presented at trial was sufficient to support the defendant's conspiracy convictions; and (3) whether, given the proof offered at trial and at the post-trial forfeiture hearing, the courts below properly ordered forfeiture of the cash seized on the 4571 Dugger Road property.

         II. Search Warrant Affidavit

         A. Facts Recited in the Search Warrant Affidavit

         Trooper Shawn Boyd, a Tennessee Highway Patrol ("THP") officer, prepared the April 23, 2012 affidavit that resulted in the issuance of the April 24, 2012 search warrant allowing officers to search the 4571 Dugger Road property.[6] When he prepared the affidavit, Trooper Boyd had worked as a THP officer for ten years and had been assigned to the Nashville Drug Enforcement Agency Task Force ("Nashville DEA") for two years.

         The investigation culminating in the request for this warrant began after another THP officer stopped a motorist, Adrian Davis, on March 2, 2012, for a routine traffic violation. When a consensual search of Mr. Davis's vehicle yielded a small amount of marijuana and Lortab pills, Mr. Davis offered to provide law enforcement with information concerning a marijuana trafficking organization. The THP officer issued Mr. Davis a citation for possession of drugs, released him, and gave him Trooper Boyd's telephone number. Mr. Davis called Trooper Boyd the next day, and two days after that, March 5, 2012, Trooper Boyd interviewed Mr. Davis.

         During this interview, Mr. Davis admitted to Trooper Boyd that he had previously received marijuana from an Atlanta, Georgia based marijuana distribution organization operated by a Hispanic man named Martinez. Mr. Davis stated that the defendant's son, Christopher Tuttle ("Son"), known to Mr. Davis as "Red, " received large quantities of marijuana-approximately 600 to 700 pounds-from this same drug trafficking organization ("DTO") on a weekly basis. When shown the photograph from Son's driver's license, Mr. Davis identified Son, stated that he had seen Son picking up marijuana from couriers of the DTO about a year earlier, stated that Son drove a white Nissan truck and lived in South Nashville (although Mr. Davis did not know the exact location), and, relevant to the case, stated that Son's "whole family [was] involved with selling drugs." Mr. Davis also provided Trooper Boyd with his own telephone number and with two addresses at which he resided.

         Using this information, Nashville DEA learned that Mr. Davis's telephone number was connected to ongoing DEA investigations in Atlanta, Georgia, and Birmingham, Alabama, into marijuana distribution organizations. Atlanta DEA already had a wiretap on Mr. Davis's phone number, and, on January 14 and 15, 2012, intercepted Mr. Davis "discussing multi[-]hundred pound marijuana deals" with the target of its investigation. Birmingham DEA had tracked a suspected drug dealer, Cleto Medina, the target of its investigation, to one of the addresses Mr. Davis gave Trooper Boyd as his residence and had information, via wiretap, that another suspect, known as "The Red, " was "believed to be receiving large shipments of marijuana in Tennessee." Birmingham DEA had received this information from Austin, Texas DEA, which was conducting a wiretap as part of an investigation it was conducting of a marijuana trafficking organization based in Texas.

         In March 2012, Austin DEA informed Nashville DEA of its investigation of the Mario Martinez Calderon DTO, which was receiving, transporting, and distributing kilograms of cocaine, methamphetamine, and marijuana from Austin, Texas to Birmingham, Alabama. Austin DEA advised that Mr. Medina had been identified as the person in Birmingham to whom the Martinez-Calderon DTO supplied drugs. Furthermore, Austin DEA advised that, on March 6, 2012, one of its confidential informants made a controlled call to Mr. Medina and learned that he had a Tennessee customer known as "El Rojo, " which translates to "The Red." Mr. Medina and the confidential informant discussed the price of cocaine and possible future deals with "El Rojo" and another Tennessee customer involving multiple kilograms of cocaine. Mr. Medina stated that "he ha[d] known 'El Rojo' for a while and that 'El Rojo' is very careful."

         On March 16, 2012, Birmingham DEA advised Nashville DEA that Mr. Medina had received a shipment of drugs in Birmingham and that Mr. Medina's brother and co-conspirator, Biato Jaramillo, would be transporting drugs to a customer in Tennessee that day. At approximately 5:30 a.m. that day, Birmingham DEA advised Nashville DEA that their agents were following a maroon Ford Expedition with an Alabama license tag north on Interstate 65 toward Tennessee and that the Expedition was transporting a large amount of narcotics. Nashville DEA responded by sending officers to conduct surveillance of the vehicle once it crossed into Tennessee. Birmingham DEA agents followed the vehicle until it crossed into Tennessee at approximately 7:56 a.m., at which point Nashville DEA began following the vehicle as it continued north on Interstate 65. At approximately 8:26 a.m., officers observed the Expedition take exit 37 onto Tennessee State Highway 50 and stop at a Shell gas station near the exit. The Expedition pulled next to a gas pump, and the driver went into the store, returned to the vehicle, drove the vehicle to a parking space, and stopped.

         About thirty minutes later, at approximately 8:58 a.m., an officer observed a white Nissan Titan truck, later identified as belonging to Son, arrive at the gas station, pull next to the gas pumps, and then leave the gas station, followed by the maroon Expedition. Officers followed the vehicles as they traveled west on Highway 50 and then turned onto Highway 373 at about 9:09 a.m. However, when the vehicles turned onto Mooresville Pike a short time later, officers were unable to maintain surveillance in the rural area without risking discovery, so "contact with the vehicles was lost for a period of time." During this time, officers learned from searching a computer database containing real estate records that Son possibly had family in the area, because Tammy A. Tuttle was listed as the record owner of property located nearby at 4571 Dugger Road, Culleoka, Tennessee.

         Trooper Boyd and another officer then drove past the 4571 Dugger Road property and observed Son's white Nissan Titan truck parked in the driveway behind the defendant's mobile home. A short time later, officers observed Son's vehicle pull onto Highway 373, drive to Highway 50, and then pull onto Interstate 65, heading north toward Nashville.

         Based on the foregoing, Trooper Boyd expressed his belief "that during this meeting [on March 16, 2012] BIATO JARAMILLO transferred drugs to [Son]" at the 4571 Dugger Road property. Trooper Boyd acknowledged that officers had no information implicating Tammy A. Tuttle in Son's drug trafficking activities, but, as Trooper Boyd recited in the affidavit, officers were aware that Son's father had previously resided on the property and that Son had previously hidden proceeds of an earlier drug trafficking scheme on the 4571 Dugger Road property. In particular, Trooper Boyd explained that, on December 14, 2000, a Davidson County Grand Jury had charged Son and other co-conspirators in a multi-count indictment for their involvement in a marijuana distribution organization Son operated. The charges stemmed from separate February 2000 traffic stops of Son and his wife, which resulted in the seizure of over $60, 000 cash derived from drug proceeds, a July 2000 seizure of 2, 600 pounds of marijuana from a rental truck that another co-conspirator intended to deliver to Son, an August 2000 seizure of 2, 200 pounds of marijuana from a vehicle in Son's possession, and $25, 000 cash Son had retrieved from another co-conspirator's residence to pay the driver of the loaded vehicle. As part of this investigation, a search warrant was executed on August 11, 2000, at the 4571 Dugger Road property, and officers "located a metal ammo can, which contained a plastic bag with $112, 000[] in U.S. currency. The plastic bag had '$200, 000' and the initials 'CT' written on it."[7] Investigators suspected that the cash constituted Son's proceeds from drug trafficking activities, which Son had hidden at his father's residence.

         Trooper Boyd recounted that, on the morning of April 2, 2012, Birmingham DEA observed suitcases being offloaded from a bus and loaded into Mr. Medina's white Lincoln Navigator in Birmingham. Around noon that same day, Birmingham DEA informed Trooper Boyd of a call it had intercepted between Mr. Medina and Son, during which Mr. Medina asked if Son was ready, and Son answered in the affirmative. Mr. Medina told Son he would leave at 1:30 p.m. and would arrive around 4:30 p.m. Son agreed to this time and told Mr. Medina to call when he was near the state line. Mr. Medina and Son discussed "luggage, " with Mr. Medina saying it was just one big luggage and the amount was 170. Referring to what Trooper Boyd believed was money to pay for the drugs, Son told Mr. Medina that he did not have all of it but was very close and was going to another location to find out if he could get all of it. Based on his training and experience, Trooper Boyd believed that "luggage" referred to marijuana and "170" referred to the cost of the marijuana as $170, 000. Trooper Boyd interpreted the coded language in the phone call as Son and Mr. Medina "making plans in order to conduct a marijuana transaction."

         At 3:30 p.m. that same day, April 2, 2012, Birmingham DEA contacted Trooper Boyd and advised that, during an intercepted call, Son had instructed Mr. Medina to take exit 32 off Interstate 65, turn left, and proceed to a Texaco gas station. Mr. Medina had repeated the instructions and agreed to call Son when he exited the Interstate. Acting on this information, Nashville DEA established surveillance of Highway 373, known as the Culleoka Highway, at exit 32 in the direction Son told Mr. Medina to travel. Officers also set up surveillance at a market located at 2345 Culleoka Highway. At approximately 4:00 p.m., officers observed the white Navigator leave Interstate 65 at exit 32 and proceed west on Highway 373, as Son had instructed. At approximately 4:07 p.m., another officer observed Son arrive at a nearby gas station in his white Nissan Titan truck and pull next to the gas pumps. Shortly after Son arrived, the Navigator, driven by a Hispanic male wearing blue jeans, a striped shirt, and a ball cap, stopped next to the gas pumps. Officers observed the Hispanic man and Son leave their vehicles and walk towards the front of the market. Both men soon returned to their vehicles and departed the gas station, with the Navigator following the Son's vehicle as it turned onto Mooresville Pike in the direction of Dugger Road. Because of the rural location, officers were again unable to follow the vehicles after they turned without risking discovery.

         However, at 4:20 p.m., Birmingham DEA Special Agent Shawn Steven advised Officer Boyd that Birmingham DEA had received "a cell phone GPS [global positioning system] location of [Mr. Medina's] phone and [that] it placed [Mr. Medina] on Dugger Road in Culleoka." In his affidavit, Trooper Boyd stated that Son "was found at this same location during the surveillance that took place on March 16, 2012."

         The next day, April 3, 2012, a federal magistrate judge authorized the GPS tracking of Son's telephone number, and GPS tracking that same day placed Son on Remuda Circle in Smyrna, Tennessee. Trooper Boyd traveled to Remuda Circle and observed Son's white Nissan Titan truck in the driveway.

         On April 4, 2012, Trooper Boyd returned to Remuda Circle at approximately 12:46 p.m., because GPS had placed Son's telephone there, but the white Nissan Titan truck was not at the residence. At approximately 1:30 p.m., Trooper Boyd observed the vehicle pull into the driveway and saw a white female exit the vehicle and enter the residence via the garage. Ten minutes later, Trooper Boyd saw the white female and Son exit the residence and enter the vehicle, with the female driving and Son in the passenger seat. About two hours later, the vehicle returned to Remuda Circle and backed into the garage. Trooper Boyd observed Son exit from the driver's side and a teenage male exit from the passenger side. Both entered the residence via the garage.

         The next day, April 5, 2012, Trooper Boyd obtained an order from a Tennessee trial judge to intercept and monitor calls to a phone number Son used. On April 11, 2012, Trooper Boyd intercepted a call between Mr. Medina and Son, in which Son indicated that the "wood" was "157" instead of "170." Mr. Medina assured Son that he and his boss would give Son credit for the difference, and Son indicated that he should receive credit for the difference between 157 and "170, " as well as "three" from another time.

         Based on his experience and training, Trooper Boyd interpreted "wood" as referring to "marijuana" and believed that Son was telling Mr. Medina he had paid for 170 pounds of marijuana but had received only 157 pounds and that Mr. Medina's response was assuring Son that he and his boss would credit Son for the shortages on the next delivery. Trooper Boyd stated that during this conversation with Mr. Medina-and thirty minutes before and after it-GPS tracking had placed Son's phone on Remuda Circle in Smyrna. Trooper Boyd believed that, when this conversation occurred, Son had "just finished weighing the marijuana received from the delivery on April 2, 2012."

         Based on the above facts, Trooper Boyd stated in his affidavit his conclusion that Son was "utilizing 4571 Dugger Road, Culleoka, Tennessee to further his drug trafficking activities." Trooper Boyd based this conclusion "specifically on intercepted calls and surveillance of [Son] that establish that [Son] utilized 4571 Dugger Road, Culleoka, Tennessee on March 16, 2012 and April 2, 2012 to receive shipments of marijuana in excess of 100 pounds from BIATO JARAMILLO AND CLETO MEDINA." In paragraph eighteen of the fifty-two-paragraph affidavit, Trooper Boyd stated: "As further described below [Son] used this residence on March 16, 2012 and April 2, 2012 to off load shipments of marijuana in excess of 100 pounds." However, nowhere in the affidavit did Trooper Boyd state that he, or any other law enforcement officer, had actually witnessed the offloading of drugs or Son receiving drugs at the 4571 Dugger Road property.

         Trooper Boyd also based his conclusion that evidence of drug trafficking would be found on the 4571 Dugger Road property on his own experience and training, gained from executing numerous search warrants in drug trafficking investigations and attending numerous training workshops and seminars, taught by both the DEA and private organizations. From this experience and training, Trooper Boyd had learned several "habits, characteristics, and practices of drug traffickers, " including, among others, the following:

a. Drug traffickers very often place their assets derived from their criminal activities in names of other persons or corporate entities other than their own names, or they will use false names and identities in order to avoid detection of these assets by law enforcement agencies so as to avoid forfeiture of the same.
b. Drug dealers actually own and continue to use such assets derived from criminal activities and exercise dominion and control over this property, though it may be titled or recorded in the names of others.
c. Drug dealers who purchase larger amounts of controlled substances must maintain and have access to large amounts of cash in order to maintain and finance their on-going narcotics business.
. . . .
e. Drug dealers very often will hide contraband, proceeds of drug sales and records of drug transactions in secure location[s] such as their own residences, locations which they control but which are titled in the names of others, residences of others who are participants in or aiders and abettors of the drug conspiracy, their businesses, and bank safe deposit boxes to conceal them from law enforcement officials.
. . . .

         B. Suppression Hearing

         At the pretrial suppression hearing, the defendant argued that the affidavit failed to establish probable cause because it lacked sufficient facts to establish a nexus between the drugs and the defendantʼs residence on the 4571 Dugger Road property. The defendant insisted that the allegations of the affidavit actually indicated that the drugs were located at Son's Smyrna Remuda Circle residence. Furthermore, the defendant alleged that the facts aimed at establishing a nexus between the drugs and his residence on the 4571 Dugger Road property were stale, consisting only of the defendant's ten-year-old charges and convictions (including the search of the property preceding them) and Trooper Boyd's statement that, on two prior occasions, the most recent being three weeks before officers applied for the warrant, Son had allegedly used the property to receive shipments of drugs from agents of the DTO.

         In addition to challenging the facial sufficiency of the affidavit, the defendant attempted to impeach the affidavit by arguing that paragraphs eighteen and thirty-seven of the affidavit contained false information. In particular, the defendant claimed that paragraph eighteen falsely implied that Trooper Boyd, or another officer, had witnessed the offloading of marijuana in excess of 100 pounds at the defendant's "residence" on March 16 and April 2. The defendant pointed to the following statement in paragraph eighteen as supporting this claim: "As further described below [Son] used this residence on March 16, 2012 and April 2, 2012 to off load shipments of marijuana in excess of 100 pounds." (Emphasis added.) The defendant also attacked the following portion of paragraph thirty-seven as false:

At approximately 4:20 p.m. [Birmingham DEA Special Agent Shawn Steven] advised me [Trooper Boyd] that they received a cell phone GPS location of [Mr. Medina's] phone and it placed him on Dugger Road in Culleoka, Tennessee. [Special Agent] Steven was able to provide the numeric for that GPS query, they are as follows: 35.47379, -87.02369, the GPS location placed [Mr. Medina] on Dugger Road at 4:24 p.m. on April 2, 2012. As described earlier in this affidavit [Son] was found at this same location during the surveillance that took place on March 16, 2012. Also as described earlier in this affidavit the 20th Judicial Drug Task Force executed a search warrant at 4571 Dugger Road, Culleoka, TN in connection with their investigation in 2000. During the search $112, 000.00 in cash was seized from the residence which at the time belonged to [Son's] father.

         According to the defendant, this statement falsely implied that the GPS coordinates placed Mr. Medina in the driveway of the defendant's mobile home, which was the "location" at which Son's vehicle was seen parked on March 16, 2012.

         To substantiate his assertion that paragraph thirty-seven contained false information, the defendant called Ben Sellers to testify at the suppression hearing. Mr. Sellers owned C.T.S., a company specializing in providing equipment to business clients which allows them to track the GPS whereabouts of their vehicles. Mr. Sellers said his company's equipment is accurate to within five meters. Using his company's equipment and his cell phone, Mr. Sellers visited the GPS coordinates listed in paragraph thirty-seven of the affidavit. He testified that these coordinates referred to a specific point on an unmarked dirt road, approximately 120 to 140 yards from the defendant's residence on the 4571 Dugger Road property but only fifty feet from a neighbor's house located at 4585 Dugger Road. Mr. Sellers acknowledged, however, that the property to which the GPS coordinates referred was included in the nearly six-acre tract constituting the 4571 Dugger Road property, for which the search warrant was issued.

         Nevertheless, Mr. Sellers stated that the driveway of the defendant's residence, where officers saw Son's truck parked on March 16th, would have different GPS coordinates than those listed in paragraph thirty-seven. But, Mr. Sellers conceded that, when the GPS coordinates listed in paragraph thirty-seven were typed into Google Maps, an internet service, Google Maps returned the location of the coordinates as 4571 Dugger Road, the address associated with the defendant's residence and the property for which the search warrant was issued.

         Trooper Boyd also testified at the suppression hearing. He clarified that, while he had stated in paragraph thirty-seven that the GPS coordinates "placed [Mr. Medina] on Dugger Road . . . [and as] described earlier in this affidavit[, ] [Son] was found at this same location . . . on March 16, 2012, " he had not meant "that it was at the exact same location that [Son's] truck was parked . . . . It was in the same area there, . . . [the] same location that he was seen at on March 16th." Trooper Boyd acknowledged that the wording of the paragraph could have been more precise, could have specified that law enforcement officers had observed Son's truck parked in the driveway of the defendant's residence only after the suspected drug transfer had occurred, and could have provided a fuller explanation of the GPS coordinates. Trooper Boyd explained that he had failed to be more precise because he was "just tired." Trooper Boyd reiterated that Google had returned the location of the GPS coordinates listed in paragraph thirty-seven as 4571 Dugger Road.

         Trooper Boyd confirmed that neither he nor any other agent witnessed a drug transaction or transfer at the 4571 Dugger Road property. He described his use of the word "residenceˮ in paragraph eighteen as "probably miswording, more than anything" and emphasized that the statement reflected his belief, based on the available evidence, not his first hand observation, that Son was using the property to transfer drugs. He agreed that he should have used the more general word "property" instead of "residence." Nevertheless, Trooper Boyd maintained that he had neither intentionally included false information in the affidavit nor attempted to mislead the judge into issuing the warrant.

         DEA Special Agent Shawn Steven also testified at the suppression hearing. He explained that, after learning from Trooper Boyd that officers were not able to maintain surveillance on Son and Mr. Medina for fear of being discovered, he had asked Sprint, pursuant to a warrant, to ping Mr. Medina's cell phone. Upon his request, Sprint sent a signal-a ping-to Mr. Medina's cell phone, which returned the latitude and longitude coordinates of the phone's location at the moment it was pinged. DEA Special Agent Steven explained that the accuracy of pinged locations varies from five meters to 1, 000 meters. Sprint informed Special Agent Steven that the pinged location of Mr. Medina's phone was accurate to within forty-one meters or 123 feet. Special Agent Steven understood that the coordinates referred to a location on Dugger Road and that both the defendant's property and a neighbor's property were within the forty-one-meter accuracy range, but that neither the exact coordinates nor the forty-one-meter accuracy range included the defendant's mobile home and driveway. Special Agent Steven shared the GPS information with Trooper Boyd, who included the coordinates in his affidavit. Special Agent Steven acknowledged that it would be false to state that the ping of Mr. Medina's phone on April 2, 2012, occurred at exactly the same location where Son's truck was parked on March 16, 2012, because they were two different locations.

         Lieutenant William Doelle[8] of the Maury County Sheriff's Department, who was present on April 24, 2012, when the search warrant was executed, also testified at the suppression hearing. He stated that the 4571 Dugger Road property consisted of approximately six acres and that the defendant's residence was situated near the road and a dirt path that ran along the back of the property. He confirmed that the GPS coordinates for Mr. Medina's phone were located on the 4571 Dugger Road property, although the coordinates did not refer to the defendant's residence. Lieutenant Doelle stated that the defendant's residence was not visible from the location of the GPS coordinates.

         After considering the testimony presented at the suppression hearing, the trial court denied the motion to suppress. The trial court concluded that paragraph thirty-seven did not contain false information. Given the range of accuracy of the GPS coordinates and the proof showing that Google had returned the location of the GPS coordinates as 4571 Dugger Road, the trial court "[was] inclined to grant some leniency relative to the [GPS] location of [the] [d]efendant's residence, and [found] that the [a]ffidavit otherwise describe[d] with sufficient particularity the location of the residence and the property to be searched." As for paragraph eighteen, however, the trial court found that the statement, "[a]s further described below [Son] used [the defendant's] residence . . . on March 16, 2012[, ] and April 2, 2012[, ] to off[-]load shipments of marijuana in excess of 100 pounds, " was "false." The trial court explained:

Affiant, Trooper Shawn Boyd, . . . testified as follows: "I saw [Son's] . . . truck only on March 16, 2012[, ] in the driveway of the trailer-pulled in behind the trailer." Therefore, on that day only, March 16, 2012, he merely saw [Son's] truck pulled in behind the trailer on [the defendant's] property. The [a]ffidavit stated that further information would be included as to criminal activity [that] occurred on April 2, 2012[, ] and March 16, 2012.
There is nothing else in the [a]ffidavit relative to these dates and specific criminal activity actually observed on [the defendant's] property. Trooper Boyd testified that this was a "simple mistake." There is nothing in the [a]ffidavit and there is no testimony of any marijuana or other narcotics being delivered, loaded[, ] or off-loaded at [the defendant's address].

         Nevertheless, the trial court concluded that the false statement had not been made "with intent to deceive the [c]ourt" and, while important, the trial court could not "say it [was] a false statement 'essential to the establishment of probable cause, recklessly made.'" The trial court considered the "other facts and statements" in the affidavit, "including what else happened on March 16, 2012 and April 2, 2012, " and concluded that the affidavit had sufficiently established "a nexus between the criminal activity and [the defendant's] ...


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