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State v. Ferguson

Court of Criminal Appeals of Tennessee, Jackson

February 26, 2018

STATE OF TENNESSEE
v.
BARRY LEON FERGUSON

          Session September 6, 2017

Appeal from the Circuit Court for Dyer County No. 15-CR-77 R. Lee Moore, Jr., Judge.

         The Appellant, Barry Leon Ferguson, pled guilty in the Dyer County Circuit Court to possession of cocaine with intent to sell or deliver, possession of methamphetamine with intent to sell or deliver, possession of oxycodone with intent to sell or deliver, and possession of marijuana with intent to sell or deliver and reserved a certified question of law concerning the sufficiency of the affidavit underlying the search warrant issued in this case. Based upon the oral arguments, the record, and the parties' briefs, we affirm the trial court's denial of the motion to suppress.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

          Martin L. Howie, Dyersburg, Tennessee, for the appellant, Barry Leon Ferguson.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; C. Phillip Bivens, District Attorney General; and Charles Dyer and Karen W. Burns, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and J. Ross Dyer, J., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

         This case relates to a search of the Appellant's home on November 3, 2014. On October 30, 2014, Investigator Stoney Hughes of the Dyer County Sheriff's Office submitted an affidavit in which he listed the following as the factual basis supporting probable cause for issuance of a search warrant for the residence:

1. That the sale of illegal drugs generates large amounts of cash. Drug traffickers typically utilize this to purchase assets of all types including, but not limited to, vehicles, jewelry and real estate.
2. The Confidential Source, hereafter referred to as CS, has contacted the affiant and Lt. Ken Simpson concerning suspect Barry Ferguson "AKA Slow" selling cocaine, and cocaine base from his residence at 743 Newbern Roellen Rd.. A Criminal History query reveals that Barry Ferguson has a conviction in Federal Court for sale of cocaine on 06-24-96[.]
3. A vehicle registration query revealed that Barry Ferguson has a black 1998 Pontiac currently registered to him at the address of 743 Newbern Roellen Rd. Dyersburg, TN with an expiration date of 03/31/15.
4. Within the past 72 hours, the CS has met with Lt. Ken Simpson, and the affiant for the purpose of conducting a controlled buy at Barry Ferguson's address at 743 Newbern Roellen Rd. from Barry Ferguson. The CS [h]ad made an agreement to purchase cocaine base. Lt. Simpson and the affiant searched the CS prior to the purchase and transported the CS to Newbern Roellen Rd. The CS went to the front door of Barry Ferguson's Residence, where Mr. Ferguson came to the door from inside to make the exchange. The CS returned with a white rock like substance that field tested positive for cocaine.
5. Residence to Wit: 743 Newbern Roellen Rd, Dyersburg, Tennessee, 38024. The involved residence is a single story, single family dwelling, with blue siding, a full length front porch with brown trim and support posts at the corners, a white metal roof, sitting on the west side Of Newbern Roellen Rd., facing east, with a black mailbox numbered 743 located on the road side of the property, and being the residence of Barry Leon Ferguson[.]
6. Your Affiant requests a search warrant for the residence of 743 Newbern Roellen Rd, Dyersburg, Tennessee, 38024, and all persons, vehicles and curtilage located at this residence for firearms, cocaine, cocaine base, clandestine cocaine base manufacturing equipment, drug paraphernalia, U.S. Currency, receipts, books, ledgers, notes, computerized and hand written records and all other material evidence of violations of T.C.A. 39-17-417, T.C.A. 39-17-1307, T.C.A. 39-17-1308 and 39-17-1324.

         Based on the information contained in the affidavit, Chancellor Tony Childress granted Investigator Hughes's request for a search warrant. During the search, police officers ...


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